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Legislative Council - Fifty-First Parliament, Second Session (51-2)
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MARINE PARKS BILL

Second Reading

Adjourned debate on second reading.

(Continued from 25 September 2007. Page 719.)

The Hon. G.E. GAGO (Minister for Environment and Conservation, Minister for Mental Health and Substance Abuse, Minister Assisting the Minister for Health) (15:35): I rise today to thank honourable members for their contributions to the second reading debate. I am very heartened by the fact that everyone who has spoken on this matter has committed to support the establishment of marine parks. I also note that a number of concerns were raised by a number of people in this place and also by stakeholders interested in the protection of our marine environment. Marine parks are new to South Australia and the uncertainty which accompanies any change is natural. We have listened carefully and, in response, I have a number of amendments that address the concerns, I believe, in a very fair and appropriate way.

In relation to community involvement, the passion and commitment that people have for our marine environment is inspiring. Across the state people have indicated a strong desire to be involved in both the establishment and ongoing management of marine parks and, of course, it has always been the government's intention to involve as many people as possible in the process of creating a marine parks system. However, to provide more certainty, I will be moving several amendments that provide the detail of this commitment. When management plans are developed, I will add a list of representatives of key sectors whose views I will seek when making or amending management plans. It is important to note that this will occur in addition to the process previously outlined in the bill and not instead of it.

In addition, a number of representations have been made for the establishment of a marine parks council. The government believes that community involvement in the development of marine parks is essential. We currently have three committees that provide advice directly to us: the Marine Advisory Council, the Marine Parks Stakeholder Reference Group and the Scientific Working Group. The government gratefully acknowledges the important contribution that these parties have already made. I understand that stakeholders want to be sure that these arrangements will continue. To this end, the Hon. Caroline Schaefer has drafted an amendment to establish a Marine Parks Council and, in the spirit of bipartisan support, I wish to advise the honourable member that the government supports this amendment and I congratulate her on her work with stakeholder groups in reaching this amendment. The government will also be supporting the further amendments of the Hon Mark Parnell which will ensure that the council has an appropriate role in respect of advising on community nominations and will also have standard requirements regarding conflict of interest. I look forward to discussing these further in the committee stage.

In the definition of 'management plan zones', several questions have been raised about the definitions of the four zones proposed to facilitate the management of marine parks. There were concerns about South Australia being consistent with national and international standards, and the idea of directly employing IUCN protected area categories was specifically suggested. I am advised that best legislative practice on this matter is to articulate the outcomes sought by zones in subordinate regulations which would also specify the activities and uses to be permitted, prohibited or otherwise regulated within each of the zones.

In this way there can be no ambiguity about the purpose of the zones and how their outcomes would be achieved. This process was employed in legislation by the commonwealth and the New South Wales and Queensland governments. I note that the Hon. Caroline Schaefer has proposed some definitions of management zones, in consultation with stakeholders, to provide some extra certainty that stakeholders are seeking, and I have an amendment that expands the definitions of zones so their purpose is more explicit. The slightly tighter definitions now have the support of environment groups and industry bodies, and I look forward to the support of the opposition on these expanded definitions.

Another issue that the Hon. Caroline Schaefer and I have been discussing with industry stakeholders is the provision for managing the effects of any displaced effort. In particular, industry is seeking greater certainty about compensation to affected individuals. That is obviously not an easy issue. The government has been exploring ways to maintain the flexible arrangements negotiated with industry in 2005 to minimise the impact on commercial fishers and aquaculture operators while providing the requested certainty. I am pleased to advise that we have come to an arrangement on this matter. I note that the amendments proposed by the Hon. Ms Schaefer and the government are almost identical, and I believe that we can easily resolve this matter in the committee stage. To provide additional support on this issue, the government has also invited commercial fishing, aquaculture and seafood industry associations to be part of a working group to assist with the development of mechanisms and subsequent regulations that will govern this matter, and I am hopeful that this group will meet for the first time in the near future.

Government accountability and transparency are fundamental to the development of any project, and the establishment of marine parks is no exception to this. One of the key areas of discussion (and, may I say, attention in the media) has been the preparation of impact statements outlining the environmental, social and economic implications of marine parks. It has always been the government's intention to release such impact statements, along with draft management plans, to make sure that all members of the community have complete information about possible implications of a marine park. It has been suggested to me that there is no guarantee that future governments will honour these undertakings, and stakeholders seek certainty in this legislation.

To provide this certainty, the government has drafted amendments that provide a two-stage process. First, a statement of the environmental, economic and social values of each area subject to a marine park boundary declaration will be released before a draft management plan is written. The values statement will articulate information about why the environment of the particular location was selected for inclusion in the marine park. It will also include information about the social and economic uses of the area. The values statements will be informed by the research of government officers and by information provided by communities during public consultation on the marine park boundaries.

After the draft management plan is written, the government will release a full economic, social and environmental impact statement of the proposed zoning arrangements for the marine park, developed in consultation with local communities. Meaningful information on the likely impacts cannot be known until plans and their zoning arrangements have been drafted, because the types of zones and their locations will have a direct bearing on the level of impact (both positive and negative). Trying to develop an impact statement prior to this stage really is putting the cart before the horse. To increase this high level of accountability even more, I am proposing that any future changes to management plans will be referred to the Environment, Resources and Development Committee of parliament for review to allow parliamentary scrutiny of these changes, noting that the plan amendments will already have been developed through an extensive public consultation process.

A range of stakeholders interpreted clause 6, 'Interaction with other acts', to mean that the marine parks legislation would override other legislation, creating a conservation hierarchy over resource use and other management activities in the marine environment. This is not the case. Marine parks will work most effectively in conjunction with other management plans and legislation. The Marine Parks Bill complements existing statutes to ensure integration and avoid duplication of policies, structures and mechanisms. To address these concerns this clause has been amended to state that the prohibitions or restrictions applying within a marine park can only override other legislation as prescribed in regulations. I am also pleased that the Hon. Dennis Hood has agreed to withdraw an amendment providing for recreational fishing in sanctuary zones and replace it with an amendment which ensures that people fishing with a hand line or rod and line will be warned in the first instance rather than prosecuted. It is the government's view that marine parks need the support of the community and that education rather than penalty is often the most effective way to bring about cultural change. Therefore, we will support the Hon. Mr Hood's amendment in this area.

Concerns have been raised by a number of industry stakeholders that the objects of the legislation do not give ecologically sustainable development an equal weighting with conservation, but rather that ecologically sustainable development is a secondary object of the bill. We must remember that this is first and foremost conservation legislation crafted to function within the triple bottom line context. Resource use legislation, such as the Fisheries Management Act 2007 and the Aquaculture Act 2001 does not replace environmental protection or ESD on an equal basis with resource utilisation. I understand that after consultation with the government the Hon. Mrs Schaefer has modified her proposed amendment to clause 1 on the objects of the bill and I thank her for this.

The government will oppose, however, the Hon. Mrs Schaefer's proposed amendment to clause 8(3)(f). Some people have suggested that the government will use this clause to introduce fees and charges for people who use the marine environment, particularly commercial and recreational fishers. I can quite clearly rule this out. Fisheries, both recreational and commercial, will continue to be governed under the Fisheries Management Act 2007. This is an important and nationally agreed definition of 'ecologically sustainable development' that supports the principle that the cost of restoring damage is borne by those who cause the damage and not by law-abiding members of the public. I am happy to discuss that more in committee.

I will take a few moments to address the issue raised by the Hon. Sandra Kanck during the Environment, Resources and Development Committee's inquiry into marine protected areas held in 2004-05, on which I served. The honourable member submitted a minority report that included a recommendation to provide areas of high conservation value protection from inappropriate development until the protection of a marine park could be afforded. In response to this the bill provides the Governor with the ability to grant interim protected orders where necessary for the proper management of a proclaimed marine park until a management plan is adopted. The interim protection orders will take effect immediately from the proclamation of the outer boundary of the marine parks and will remain in force until the management plan for the park is formally adopted. It is the government's intention to declare all 19 marine parks as soon as possible and any necessary interim protection orders will be proclaimed at the same time. There will be no three-year wait for protection.

It is very pleasing that members of this place worked together to achieve genuine agreement on most matters raised about this bill, and I thank all members for the very professional and considered way they have approached these issues up until now. I also acknowledge the considerable input and thank representatives of the Conservation Council, the Wilderness Society, the South Australian Fishing Industry Council, the Seafood Council of South Australia and the Recreational Fishers Advisory Council for their contributions to this bill. In closing, I look forward to continuing bipartisan support during the committee stage. Our cooperative efforts will lead to the proclamation of this legislation, leaving a legacy for future generations long after we are gone.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

The Hon. C.V. SCHAEFER: I move:

Page 5, after line 13—insert:

'Chief Executive' means the chief executive of the department and includes a person for the time being acting in that position;

Page 6—

After line 5—insert:

'Council' means the Marine Parks Council of South Australia established under section 22A;

After line 7—insert:

'Department' means the administrative unit of the Public Service that is, under the minister, responsible for the administration of this act;

These amendments relate to the establishment of a marine parks council for South Australia (which is my amendment No. 15). With your permission, Mr Acting Chair, I will speak to amendment No. 15 because my amendments Nos 1, 2 and 3 are consequential to that.

The ACTING CHAIRMAN (Hon. J.S.L. Dawkins): Proceed.

The Hon. C.V. SCHAEFER: When this bill arrived (as I said in my second reading speech), absolutely no stakeholders were happy with it. That, to me, is quite breathtakingly poor, given that the government has had some six years to work on it. One of the major issues with the fishing industry, the regional development boards, the Local Government Association in the South-East, the Conservation Council and the Wilderness Society was that once the original bill was passed there was very little need to consult with anyone—certainly, very little need to consult with the key stakeholders. As such, there has been a great deal of work done by those key stakeholders.

My amendment No. 15 establishes a marine parks council, to consist of 10 members appointed by the Governor on the nomination of the minister and the chief executive ex officio. Of the members appointed: one must be a person who has knowledge or experience in the field of commercial fishing; one must be a person who has knowledge of or experience in the field of aquaculture; one must be a person who has knowledge of or experience in the field of recreational fishing; three must be persons who have knowledge of or experience in the field of marine conservation; two must be persons who have qualifications or experience in a field of science relevant to the marine environment; one must be a person who has extensive involvement in community affairs; and one must be a person who has extensive knowledge of indigenous culture. Each person appointed must be a person who can demonstrate knowledge of or interest in the requirements necessary to manage the marine environment in a responsible manner.

It is quite an extensive amendment, when we come to it, but it gives real teeth to the council and imposes restrictions, if you like, on the minister of the day inasmuch as that minister must refer to the council before taking final decisions. Having spoken to my amendment No. 15, I repeat that my amendments Nos 1, 2 and 3 are definitions of the chief executive, the council, and the department as they are referred to in my amendment No. 15.

The Hon. M. PARNELL: The Greens support this amendment. We think that it is a sensible addition to the bill and it provides what could be a very useful resource to the minister in helping him or her answer some important questions about, for example, the composition of management plans and the details of those management plans. There are two issues that always arise when we establish advisory committees such as this. The first one is: who is on it? The second one is: what is their job? The job of this body is to act as an advisory committee. Its functions are set out in proposed new section 22(f), and primarily it is to provide advice to the minister on the establishment of parks, any orders that might be issued under the legislation and anything in relation to the boundaries of parks.

I also foreshadow an amendment that I have to this bill that I will move later on. I will not speak to it now, but I think that the council should also have an important role to play in assessing community nominations for marine parks. So, I think it is an important job that this marine parks council can do, and it can give advice to the minister. The composition of the council is always a vexed question, and I have had a number of conversations with the industry bodies that the minister alluded to before, and conservation bodies such as the Wilderness Society and the Conservation Council, as well as with the Hon. Caroline Schaefer. A committee of 10, with all of these various interest groups on it, is a reasonable balance, I think. At the end of the day, it depends who the minister puts on the committee. You could look at it through jaundiced eyes and you could see this committee stacked in favour of commercial users of the sea, or you could look at it and see it stacked in favour of conservation.

I would think that this is overwhelmingly a conservation piece of legislation and, therefore, that the most important advice for the minister to receive will be conservation advice. I note that there are three persons on this council who have knowledge of and experience in the field of marine conservation. At the end of the day, a minister, with or without the advice of a council, will make whatever decisions they will make, but it seems to me that this is a useful addition to the bill and the Greens will be supporting it.

The Hon. G.E. GAGO: The government supports this amendment, as indicated and outlined in the summing up of the second reading debate. We believe that the establishment of a marine park council will help facilitate stakeholder involvement in the development of management plans and will play a very important advisory role. As we have also previously indicated, in light of constituting that council, the government will then move to abolish both the Marine Advisory Committee and the stakeholder reference group because they would no longer be needed. However, members of the government's independent scientific working group will be requested to continue to meet under their current terms of reference until we have established the system of marine parks.

I believe that the proposed constitution of the council is fair and balanced and I look very much forward to working with that council. It is a very small matter but I would ask the honourable member just to consider this in the wording of her amendment, and that is that, given that it is fundamentally a conservation piece of legislation, she list the membership of the committee in a way that would involve the conservation members of the committee first and then industry groups later.

The Hon. M. PARNELL: I ask the mover whether she would be prepared to re-order the listing of expertise such that (d) appears ahead of (a), (b) and (c); in other words, to renumber those items in subsection (3) of proposed new section 22A?

The Hon. C.V. SCHAEFER: I remind my colleagues that we are now talking about my amendment No. 15. Let us get to that stage before we start 'picking nits', for want of a better expression. Personally, I find a request like that, given the amount of consultation that has taken place and given that we have spent three weeks on these amendments, pedantic in the extreme. However, I am prepared to have a look at it between now and amendment No. 15. I have just moved my amendment Nos 1, 2 and 3.

Amendments carried; clause as amended passed.

Clause 4.

The ACTING CHAIRMAN: Both the minister and the Hon. Caroline Schaefer have amendments to page 8, lines 11 to 19, and there are minor differences in their amendments. We need to deal with the minister's amendment first, and then I will ask the Hon. Caroline Schaefer to move her amendment.

The Hon. G.E. GAGO: I move:

Page 8, lines 11 to 19—Delete subclause (2) and substitute:

(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 azoneprimarily 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).

Comments were made during the second reading debate that this bill does not contain definitions of the proposed zones. It was stated that this omission means that there are no guarantees that South Australian zoning will have any parity with national or international standards. I have been advised that best practice would be to articulate the outcomes sought by zones in subordinate regulation and that that would also specify activities and uses that are to be permitted, prohibited or otherwise regulated within each of the zones and that, in this way, there can be no ambiguity about the purpose of the zones and how their outcomes can be achieved. This process was employed in commonwealth, New South Wales and Queensland legislation, and we have received quite a deal of support for it. All stakeholders support the concept of defining zones in the bill, and the Liberal Party has drafted amendments likely to be supported by minor parties. It is of utmost importance that, if we are to have definitions of zones, they are defined on the government's terms.

Parliamentary counsel has advised that definitions proposed by the Liberal Party are too broad and will make drafting the regulations difficult and likely to result in motions for disallowance or challenges that the proposed restrictions do not align with the act. For example, the definition of 'sanctuary zone' will support Family First's call for fishing in this zone, as a few hooks and lines will not damage the natural condition of the environment. Further, a number of commercial fisheries could make similar claims; for instance, rock lobster and abalone. This would open the door for potentially all forms of fishing and defeat the purpose of the zone and, indeed, the purpose of the bill. Other stakeholders believe that the zone definition should align with the IUCN protected area categories. Most jurisdictions generally adopt simple names and explanations to assist community understanding, and the IUCN categories are not formally directly employed, although definitions have consistent outcomes.

The Hon. C.V. SCHAEFER: As I say, these amendments are the result of long and arduous discussions with a number of stakeholders. I believe that some of those stakeholders will regret agreeing to the minister's new amendment, and I will point out a couple of reasons for that. The minister's amendment for a general managed use zone (which, we have been assured, means that we can pretty well continue with the activities that take place) now provides 'while allowing for ecologically sustainable development and use', whereas my amendment states 'while also providing a sustainable flow of natural products and services to meet community needs'. So, we have just chucked community needs out the door.

The restricted access zone is now defined as a zone 'primarily established so that an area may be managed by limiting access to the area'. My amendment provides, 'being a zone primarily established so that an area may be managed by permitting access by permit only'. So, instead of permitting access, we are now limiting access. However, I am well aware that these amendments have been agreed to by the key stakeholders. Yesterday, I agreed to withdraw my amendment as part of a consensus process, and I will do so having put on the record my concern about those changes which, while they may appear to be subtle, I think change the tone of the bill. I withdraw my amendment.

The ACTING CHAIRMAN: My advice is that, because the Hon. Ms Schaefer has not yet moved her amendment, she does not need to withdraw it.

The Hon. C.V. SCHAEFER: I will not proceed with it.

The Hon. SANDRA KANCK: When I made my second reading contribution, I said that I would introduce amendments along these lines. Subsequently, with the work done by the Hon. Caroline Schaefer and, subsequent to that, with what the minister has produced, it has become unnecessary. I do not have the same degree of concern about the subtle changes that the Hon. Caroline Schaefer thinks are not quite so subtle. For example, in the definition of general managed use zone, what the minister proposes is to allow ecologically sustainable development. I think it provides for that sustainable flow of natural products and services to meet community needs. What it will do, however, is focus the minds of those who are exploiting those marine resources to ensure that it is done in an ecologically sustainable way.

I commend the Hon. Caroline Schaefer for not moving her amendments. I think that she has been very big-hearted in this process. I believe that what the minister has provided instead will make it clearer. If there were any risk that allowing them in the form originally proposed by the Hon. Caroline Schaefer would open this up to challenges in various ways, I think it would be important that we remove that opportunity because, first and foremost, we want to protect the marine environment.

The Hon. M. PARNELL: I support the government amendments and also acknowledge the decision of the Hon. Caroline Schaefer not to proceed with hers. I do not share her concerns, particularly in relation to the general managed use zones. I do not see that community needs are out the window with the government's words. The government's words are about allowing economically sustainable development and, when we look at definitions of that concept, we can see that it is meeting the needs of this generation, future generations and the environment. It is pretty much the embodiment of triple bottom line.

My main concern about general managed use zones is that they may well be indistinguishable from surrounding areas of sea that are not part of the marine park. In other words, the worst case scenario could be that the area in the managed use zone is managed in exactly the same way as in other areas of the sea. I think the Hon. Caroline Schaefer has some concerns about the maps that have appeared showing different ocean bioregions. My understanding is that those maps do not represent the boundaries of marine parks in any meaningful way. My point here is that, for marine parks to be genuine conservation vehicles that are managed differently from those other parts of South Australian state waters—which I believe will still be the majority of state waters—the majority of marine parks should be composed of the habitat protection sanctuary and restricted access zones.

I do accept what the minister is saying, that it would not be a good outcome to find disallowance motions or judicial reviews for regulations and for management plans on the basis of perceived technical breaches of the words that are used in the zones here. I think prefacing these words by using the word 'primarily' (all of them start, 'being a zone primarily established' and then the reasons are given) is important and will probably protect those types of challenges.

In relation to the restricted access zone, I guess it is a case of whether the glass is half full or half empty; and, whether you start off from a position of permitting access by permit or start off by restricting access, you can end up in the same place, so I do not share those concerns about the restricted access zone. Given that, as I see it, we have reasonable support in the chamber for these zones, I will not say any more than to support their inclusion in the legislation.

Amendment carried; clause as amended passed.

Clauses 5 to 7 passed.

Clause 8.

The Hon. C.V. SCHAEFER: I move:

Page 9, after line 11—Insert:

(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.

There has been considerable concern among most people that ecologically sustainable development was secondary to the objects of the act. I must say I am quite mistrustful, but I hope this amendment moves ecologically sustainable development into the actual main objects of the act and gives it equal weighting with other matters such as conservation of marine biological diversity.

The Hon. G.E. GAGO: The government supports both of these amendments.

The Hon. SANDRA KANCK: I want to acknowledge the Hon. Caroline Schaefer for moving this. I know she would not, at any stage, have come out on the side of the environment movement when it came to protecting the rights of fishers, but I think she has—

The Hon. C.V. Schaefer: That is unfair and not true.

The Hon. SANDRA KANCK: I apologise if you think it is unfair. Even though she does not trust the government and what it is going to do, I think she is doing a very positive thing by moving this and, again, I want to acknowledge her for that.

The Hon. M. PARNELL: I will also support this amendment. Again, this is a piece of conservation legislation. Conservation must be at the forefront of this legislation, otherwise we are trying to recreate the Aquaculture Act and the Fisheries Management Act. Those acts are based on the principles of ecologically sustainable development so, when it comes to exploitation of the marine environment, ESD is in there; it is covered in those pieces of legislation. This is probably a little semantic, but it is important to me that protection and conservation of marine biological diversity maintains its rightful place at the top of the list of objects—and it does that. When we can maintain biological diversity and we then move on to some commercial use, of course, it must be done in an ecologically sustainable way. Whilst this does shuffle the order of things around a little bit, the most important thing is that it is a conservation bill and conservation is still at the top of the list of objects.

Amendments carried.

The Hon. G.E. GAGO: I move:

Page 9, line 39—Delete 'damage' and substitute:

harm

Following public consultation on the draft Marine Parks Bill, stakeholders expressed concern about the interchanging of the terms 'damage' and 'harm' in the draft bill. Accordingly, all references to 'damage' were changed to 'harm,' as this term is defined in the bill and can be further defined in regulations. Unfortunately, in this instance, this was not picked up in the redrafting and it is now being amended to ensure consistency.

The Hon. C.V. SCHAEFER: This amendment purely provides equity, if you like, in the drafting and we support it.

Amendment carried.

The Hon. C.V. SCHAEFER: I move:

Page 10, lines 6 to 12—Delete paragraph (f)

This, to me, is a very important amendment. As it currently stands in the bill (f) says, and this is still part of the objects of the act:

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. 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 these activities.

That is a cost-recovery clause, whether we like it or not. It does not just say those who adversely affect; it also says 'those who obtain benefits'. The fishing industry is on full cost-recovery fees now. The government has assured us that this clause does not apply to it. It has assured us that it is not a back-door method of introducing a recreational fishing licence. It then begs the question as to who will pay these fees, as suggested in this clause.

The explanation I was originally given was that it will be a few film crews. There is already a permit system in place where people pay to have access to these areas for the purpose of filming. Someone else asked about an oil spill. There is already sufficient environmental legislation to take care of the payment of costs as a result of any oil spill or any accident. So, again, who does this clause apply to? The minister is going to stand up and say that it does not apply to any of the people I have just suggested. However, if it does not apply to them and if it is not necessary for things like diving or filming, and if it is not necessary for things like accidental environmental damage and if, in fact, the penalty in this bill for environmental damage is $100,000, why then do we need this clause at all?

I have a principle that applies equally to the water as it does to the land, and that principle is that, if we as taxpayers and citizens of South Australia want to introduce environmental protection, all of us should pay for that environmental protection. Similarly, I have a view that pastoralists who are not allowed access to water, for instance, for purposes of environmental protection or who have to fence off areas of their properties for purposes of environmental protection, should not bear those costs. If we want that to happen (and most of us want environmental protection) then we as taxpayers and citizens of South Australia—that is, the government which controls our taxes—should bear those cost. That is my purpose for persevering with this amendment.

The Hon. G.E. GAGO: The government does not support this amendment, as indicated in the summing up of the second reading debate. It is important to note that the bill adopts a definition of 'ecologically sustainable development' designed to ensure consistency with the commonwealth's Environment Protection and Biodiversity Conservation Act 1999 and the intergovernmental agreement on the environment and other relevant policies in this area. This definition addresses the issue of maintaining the economic, social and physical wellbeing of our communities and the functioning of our natural and physical resources. The Liberal Party has filed this amendment to remove subclause (3)(f) from the objects of the act. This forms part of the universally adopted definition of 'ecologically sustainable development' agreed to by the commonwealth and all states and territories in 1992. This amendment, if agreed to, would create inconsistencies with other contemporary legislation passed by this parliament, including the Natural Resources Management Act 2004.

The key issue of concern regarding this subclause is the inference that the government will use this to introduce a raft of fees and charges for people who use the marine environment, particularly commercial and recreational fishers. That is not the government's intention. Fisheries, both recreational and commercial, will continue to be governed under the Fisheries Management Act. This subclause does have important linkages with the efficient enforcement provisions for marine parks and helps to make sure that the cost of restoring damage is borne by those who cause the damage, not by law-abiding members of the public. It also reflects the fundamental concept that all members of the community are treated equally to deliver their desired conservation outcome. Marine parks, like their terrestrial counterparts, are a community asset, and all funding for their establishment and management will be met by the government. This is not a cost shifting or cost recovery exercise.

The Hon. C.V. SCHAEFER: The minister has outlined some of the people who will not be caught by this clause: can she tell us who will be?

The Hon. G.E. GAGO: In response to the member's question, the minister needs the capacity to issue permits for activities where there is currently no regulatory regime in place, such as tourism operations, research programs and organised events, or where requirements are broader than the scope of other legislation. The proposed list of activities requiring permits was circulated for comment as part of the public consultation process for the Encounter Marine Park Draft Zoning Plan. This list was consistent with existing provisions for the management of similar activities under the National Parks and Wildlife Act 1972—for example, tourism operations, research programs, organised competitions, commercial photography, filming and sound recording. This should ensure management consistency within our terrestrial and marine protected area estate. The regulation regarding activities in marine parks will not be finalised until this bill is enacted, and the government will continue to liaise with stakeholders and communities to inform them with respect to the development of these regulations.

The Hon. C.V. SCHAEFER: The minister has just read out a briefing note, but I would really like an example of what tourism activity, for instance, will be required to pay for protecting or restoring the marine environment. Either it is a tourism activity that is suitable to be part of that zone as it is declared or it is not a tourism activity. Similarly, with scientific research, either it is included in this whole act of zoning or it is not. The minister can tell me until she is blue in the face that this is not a cost shifting exercise. Of course it is a cost shifting exercise.

The Hon. SANDRA KANCK: I indicate that the Democrats will not be supporting this amendment. If one reads subclause (3)(f) in the context of clause 8(3), one will see that it begins: 'The following principles should be taken into account', and that is what these are. From subclause (3)(a) through to (k) it is a set of principles. It does not even say 'must'; it states 'environmental factors should be taken into account...costs associated with protecting or restoring the marine environment should be allocated'. So, in a sense, it provides a set of guidelines. However, without the word 'must' there, it really does not have a great deal of strength. It is important to have that there as part of the objects, because it states the principles and it gives guidance when the marine parks are being put together and the various zones are being worked out, but there is nothing in there, as I see it, that will make anyone do anything.

The Hon. C.V. SCHAEFER: I remind the Hon. Sandra Kanck that that is what we thought when the Natural Resources Management Act was passed in this place, and there has been nothing but cost shifting ever since.

The Hon. D.G.E. HOOD: Along the lines of the Hon. Caroline Schaefer's question, I am struggling to think of a specific example where it would be appropriate to recoup costs under this circumstance from somebody—a group or whoever it may be—who has 'consumed natural resources from the area in question'.

The Hon. G.E. GAGO: During consultation on the draft bill we know that environmental film makers Dr Jan Aldenhoven and Glen Carruthers from Green Cape Wildlife Films also met on a number of occasions with departmental staff during their current project filming cuttlefish and dolphins in Spencer Gulf to discuss this very issue and, as part of their submission on the draft bill, they advised:

As film makers we would support the proposal that it be necessary to apply for a permit to film in any zone of a marine protected area. We would also suggest that, even within a restricted access zone, under certain circumstances it could be valuable to the community and environment to allow some commercial filming that had educational or scientific value. We would like to see a provision that overseas film crews must demonstrate that they have correct work visas before they can be granted permits to film.

At present the correct permit is a 420 media permit, so it is not a trivial issue. Another example in terms of tourism might be a marine mammal interaction operator for whom it would be appropriate to have a permit. I will get back to Mr Hood.

The Hon. M. PARNELL: I support paragraph (f) staying in, so I will not support the Hon. Caroline Schaefer's amendments as I see this principle being important to retain in legislation. It gives statutory recognition of a number of important principles, including the fact that environmental services are provided by the marine environment and the environment generally and that we need some equity in the allocation of costs in relation to that. Noting the minister's most recent response, commercial users' licences are an appropriate vehicle for people who want to commercially use a park. It is the system that currently exists. If you want to film in a national park you would need to get a commercial users licence to do that, which is not unreasonable. It is interesting to hear that even people who make their living from filming do not object to such a provision.

The alternative to having a clause like this is that we are at risk of revisiting the tragedy of the commons, that this is not privately owned land but a communal asset and we need to allocate rights and responsibilities, as this legislation does. I have some sympathy with what the Hon. Caroline Schaefer is saying, and she talked about farmers in the terrestrial environment. Many of these properties are providing environmental services and there is a valid question as to the extent to which the community as a whole should pay for some of those services. Taken to its logical extreme, we end up with a situation like we did with native vegetation legislation, where the starting point was: I have a right to chop down every tree on my property and you need to compensate me for not doing that. That was the origin of that legislation. We have now moved on to saying, 'No, those resources are held on behalf of the whole community and we will not compensate you with cash for protecting them on behalf of the community.'

There are minor incentives such as fencing and things like that. We can end up on a slippery slope, much as we have with our water resources, where it is becoming expensive to buy back water for the environment because we have not properly valued the commons and properly allocated rights and responsibilities in relation to that resource. I do not see paragraph (f) as being an onerous provision. The Hon. Caroline Schaefer raised a number of scenarios where you could use this to bring about what she sees as unfair taxes or fees. If we were to look at just the words, one could say that a future government could decide to go down a path that some of us might think is unfair but, as the Hon. Sandra Kanck says, we are entrenching a principle, a principle that is important as it goes to the heart of the definition of 'ecologically sustainable development' and I would be loath to remove it from the legislation.

The Hon. G.E. GAGO: In response to the question asked by the Hon. Dennis Hood on resource consumption, this is a standard ESD provision. We are trying to maintain consistency across legislation. The Marine Parks Bill is not a resource consumption use legislation, that is, it is not charging commercial fishers for a permit. The Fisheries Act is the resource consumption legislation and this is about providing a standard across legislation.

The Hon. D.G.E. HOOD: The words that concern me are 'consuming natural resources'. Will the minister give an assurance that, in the instance of a recreational fisher catching a fish from one of these environments by chance or by accident, this wording will not be used to introduce any charges or levy on that sort of activity?

The Hon. G.E. GAGO: The short answer is no, as that is provided for under the Fisheries Management Act.

The Hon. D.G.E. HOOD: No, you will not give an assurance?

The Hon. G.E. GAGO: No, this legislation will not be used in that way.

The Hon. C.V. SCHAEFER: If it will be used for hardly anything, anywhere, any old time, and there is already the provision to provide for and charge a fee for a permit for film people, scientists and all of those, what possible harm can be done by removing this clause? Why is it there?

The Hon. G.E. GAGO: As I have already stated, it is an internationally accepted standard definition. It provides consistency across legislation and that is why we need it.

The committee divided on the amendment:

AYES (7)

Dawkins, J.S.L. Lensink, J.M.A. Lucas, R.I.
Ridgway, D.W. Schaefer, C.V. (teller) Stephens, T.J.
Wade, S.G.

NOES (11)

Bressington, A. Evans, A.L. Gago, G.E. (teller)
Gazzola, J.M. Holloway, P. Hood, D.G.E.
Hunter, I. Kanck, S.M. Parnell, M.
Wortley, R. Zollo, C.

PAIRS (2)

Lawson, R.D. Finnigan, B.V.


Majority of 4 for the noes.

Amendment thus negatived; clause as amended passed.

Clause 9 passed.

Clause 10.

The Hon. C.V. SCHAEFER: I move:

Page 10—

Line 34—After 'proclamation' insert:

made on the recommendation of the minister

After line 36—Insert:

(1a) The minister must, in formulating a recommendation for the purposes of subsection (1), seek, and have regard to, the advice of the council.

Page 11—

After line 13—Insert:

(c) any advice received from the council,

Line 32—Before 'alter' insert:

on the recommendation of the minister,

After line 35—Insert:

(8a) The minister must, in formulating a recommendation for the purposes of paragraphs (b) and (d) of subsection (8), seek, and have regard to, the advice of the council.

These are drafting amendments. They are all consequential on my amendment No. 15.

The Hon. G.E. GAGO: The government supports the amendments.

Amendments carried; clause as amended passed.

Clause 11.

The Hon. G.E. GAGO: I move:

Page 9, line 12, after line 11—Insert:

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.

Stakeholders have requested that any future changes to management plans, including zoning arrangements, are subject to parliamentary scrutiny. This amendment will provide accountability to an independent review process, which provides the minister with the ability to consider and, if appropriate, address any issues raised by the Environment, Resources and Development Committee. If the issues are not addressed to the satisfaction of the Environment, Resources and Development Committee, a management plan must then be laid before both houses of parliament; and either house may then move a resolution to disallow the management plan.

The Hon. M. PARNELL: I support the amendment. As a member of the Environment, Resources and Development Committee, I have seen various documents that have been sent to us for comment. As I have said before in this place, in relation to many of those documents (in particular, development plans under the Development Act), the horse has well and truly bolted before the Environment, Resources and Development Committee gets to look at it. In other words, all the good it is to do, or the harm that is to be done, has usually well and truly been done by the time we see it in that committee. When it comes to management plans of an ongoing nature, they are a different creature because they affect the conduct of people on a day-to-day basis.

Therefore, this provides a real level of scrutiny where, if there are problems with a management plan, they can be picked up and rectified and the plan, because it operates into the future, will not have done all of its work. So, I can distinguish the more useful role the ERD Committee perhaps will play in supervising management plans under this act than it does in relation to development plans under the Development Act. I think this is a useful and important check and balance, if you like, in the legislation. It does provide an extra level of accountability and, through the witness provisions committees have, it provides stakeholders with an opportunity to talk to people about what they like or do not like in management plans.

The Hon. C.V. SCHAEFER: The opposition supports the amendment. I wish I had the same confidence the Hon. Mark Parnell has displayed. I, too, was a member of the ERD Committee, and many times management plans were submitted long after the event had taken place. In the end, the decision is taken by the minister but, certainly, it does introduce a greater level of transparency. My understanding is that, if the ERD Committee is not happy with the management plan, it must then be referred to the parliament. Again, it does allow for better transparency than is currently in the bill. We support the amendment.

Amendment carried; clause as amended passed.

Clause 12 passed.

Clause 13.

The Hon. G.E. GAGO: I move:

Page 12, line 19—Delete 'identify' and substitute 'establish'

The government has filed this amendment to subclause (1)(b) to state that a management plan must establish the various types of zones within a park and define their boundaries. This is primarily a goodwill gesture to the Wilderness Society, and it does strengthen the provision.

Amendment carried; clause as amended passed.

Clause 14.

The Hon. G.E. GAGO: I move:

Page 13, after line 11—Insert:

(ab) publish on a website, determined by the Minister, a statement of environmental, economic and social values of the area concerned; and

It has always been the government's intention to release an environmental, social and economic impact statement to accompany draft management plans to ensure that members of the community have complete information regarding the potential implications of a marine park. The amendment requires the government to prepare a statement of the environmental, economic and social values of an area established as a marine park to be released prior to commencing the development of a draft management plan. This will be released following the requirement of government to publish a notice of intention to make or amend a management plan. The values statement will clearly articulate the biodiversity, habitats and ecosystems selected for inclusion in the marine park and will also state the known social and economic uses of the area. The values statement will be informed by the research of government officers and by information provided by communities and stakeholders during the consultation on marine park boundaries.

The Hon. C.V. SCHAEFER: The opposition supports the amendment.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 13, line 12—After 'amendment' insert:

and a statement (an impact statement) of the expected environmental, economic and social impacts of the management plan or amendment

This amendment requires that, as part of the process of developing a draft management plan in consultation with local communities and industry, the government will prepare a full economic, social and environmental impact statement for the proposed zoning arrangements for the marine park. Meaningful information on the likely impacts cannot be known until after the development of the draft management plan and zoning arrangements. The designation and location of each zone will directly relate to the magnitude and nature of any potential impacts. As I have said earlier, trying to develop an impact statement prior to identifying proposed zoning arrangements is really putting the cart before the horse. It should be noted that the impact statement accompanying the draft management plan is not a statutory document but an accompanying explanatory document.

The Hon. C.V. SCHAEFER: Is the minister saying, in code, that an impact statement will be published but, if there is a massive public outcry, the minister will not take any notice of it anyway?

The Hon. G.E. GAGO: What we are proposing is a process to enable the community to put their views forward. We develop an impact statement; the government then seeks comment on the zoning from the community. We accept that the community are likely to have a great deal of local on-ground knowledge and history. This is an opportunity for them to put their views forward. If we have got something wrong, this offers an opportunity for the community to have their say and to give us the information we need to get it right. That information will be considered and, if necessary, the plan will be revised.

Amendment carried.

The Hon. C.V. SCHAEFER: I move:

Page 13, after line 14—Insert:

(iaa) the Council; and

This amendment is consequential to my amendment No. 15.

The Hon. G.E. GAGO: The government supports the amendment.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 13, lines 18 to 20—

Delete subparagraph (iii) and substitute:

(iii) a representative of any native title holders or claimants that have a native title determination or registered native title claim; and

The draft marine parks bill initially required the minister to consult with and consider the views of representatives of all signatories to any indigenous land use agreement (ILUA) that is in force in relation to any of the area comprising a marine park. During consultation on the draft bill the Aboriginal Legal Rights Movement requested that this be expanded to include a representative of any native title claimants that have a registered native title determination in relation to any of the area comprising the marine park. The government agreed to this amendment to ensure that the bill reflected both the formal native title process and the ILUA process. Subsequently, the Crown Solicitor's Office Native Title Unit recommended a technical amendment to cover indigenous groups that have a registered native title claim but who are, however, yet to decide whether they will pursue either an ILUA or a formal native title determination. Accordingly, this amendment is seeking to ensure that all indigenous groups with a registered native title claim are formally engaged in the marine parks process regardless of their preferred course of action.

The Hon. M. PARNELL: The Greens support this amendment. It would seem to us that all the talk of reconciliation and further engagement with the first peoples of this country amount to nothing if we do not acknowledge them at every opportunity in land use legislation. I think that is what this amendment does, and we congratulate the government on inserting this measure into the bill.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 13, after line 20—

Insert:

(iv) 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,

When drafting these provisions in the bill, the government sought to establish the broadest consultation process possible, enabling all interested South Australians to participate in shaping our marine parks. This amendment expands the mandatory consultation on a draft management plan to include a range of leading representatives from peak stakeholder bodies with an interest in the marine environment. These groups will now also be contacted to provide direct comment and input to draft management plans. It is important to note that this will occur in addition to the process previously outlined in the bill and not instead of it.

This provision further broadens the government's commitment to consultation on marine parks. It complements the proposed amendment by the Liberal Party to establish a marine parks council and will ensure that the minister receives expertise-based advice from the council and representative-based advice through the expanded mandatory consultation requirements. It is important to note that the expanded mandatory consultation requirements include sectors not represented on the marine parks council, including local government, the mining and petroleum industries, tourism and the general business sector.

The Hon. SANDRA KANCK: I indicate support for the amendment. I am sure that this sort of consultation would have occurred, but I think it is a very good idea to have it in the legislation so that it spells out who the interest groups are and so that there can be no mistake with somebody being overlooked in that process of consultation.

The Hon. C.V. SCHAEFER: The opposition supports this amendment. I have a question of the minister. Will the minister reaffirm that this body, committee or whatever you like to call it will be a separate group for consultation for each separate marine park? So, if a marine park is established off Ceduna, this would essentially be a different group of people from those dealing with a marine park established off Victor Harbor.

The Hon. G.E. GAGO: The honourable member raises two issues. First, this clause is about seeking the views of stakeholders—most likely via letter, for instance—on the draft management plan. With regard to the second issue, the government is committed to regional consultative committees to provide a local conduit for the local community to provide information whilst we are developing the marine park management plans. We are happy to be guided by the needs of the local community. For instance, if there were two marine parks very close together and the local communities believed that the interests across them were the same, then it might only be one committee for those parks. However, if it was identified that there needed to be two separate regional consultative community groups, then we would be happy to have separate ones. However, generally, we are committed to the principle of regional consultation.

The Hon. C.V. SCHAEFER: This is an amendment to clause 14, a procedure for making or amending management plans. It states:

The minister must, as soon as practicable after the establishment of a marine park, commence the process or the making of a management plan in relation to the park.

From that, I had assumed (and I was kindly briefed by the minister's officers yesterday) that each marine protected area would have its own management plan. Under that provision, the minister must, in relation to a proposal to make or amend a management plan, do certain things: seek the views of all relevant ministers, of a representative of all signatories to any indigenous land use agreements and a representative of any native title claimants. Then, as a PS, we have such persons or bodies as the minister determines to be leading representatives of—and there is a list: the environment and conservation sector; local government; the commercial fishing industry; the aquaculture industry; the recreational fishing sector; mining and petroleum industries; the tourism sector; and the general business sector.

I was pleased when I saw that amendment because I thought that it really did give some transparency and an opportunity for input at a very local level. I assumed that those people under paragraph (c) would be part of the local consultative committee. What I am hearing from the minister now is that all she has to do is write these people a letter. I really do seek clarification as to what that amendment is outlining. Are these people to be part of a local consultative process and a local consultative committee, or are they merely going to be dropped a letter, or perhaps an email, by the minister?

The Hon. G.E. GAGO: I can clarify that each of the 19 marine parks will have its own management plan. Each plan will be developed in consultation with the list of stakeholder groups as proposed in this particular amendment. In addition, we will be establishing a regional consultative committee for each park. Some of those groups, including the stakeholder group, are most likely to be also included in the regional consultative committee, but not necessarily. The consultative committee is established to ensure local interest and input. It could involve, for instance, individuals, groups and/or organisations. It will depend on the interests of those groups in respect of that particular marine park.

The Hon. C.V. SCHAEFER: Will the minister give me an example of what form the consultation with these bodies (which are now named in her amendment) will take? If they are not a part of the consultative committee, what sort of consultation will take place? Frankly, there are a lot of people in the proposed Encounter exercise that do not believe they were consulted at all.

The Hon. G.E. GAGO: There is a range of ways in which we propose to consult with the stakeholder groups that are listed, in terms of seeking their views, advice and suggestions. It is likely to involve forums such as both formal and informal meetings with these organisations, written requests for information and circulation of documents, where the organisations are requested to formally respond and forward their responses and formal comments back to the department. So, it could involve a range of various means of consultation.

In relation to the regional consultative groups, these forums are established to provide for those interests and voices that will not necessarily be captured by those stakeholder organisations—for instance, local individuals who might not be represented by a particular fishing organisation or aquaculture group but who, nevertheless, have lived and worked in the area and have legitimate interests in a park and are also likely to have some very important information to assist us in putting our parks together. So, it is a two-tiered approach, if you like, to capture those groups whose interests are formally represented through organisations, and their concerns and input will be captured that way, and also those people who are not represented by those broader organisations.

The Hon. C.V. SCHAEFER: I find the minister's answers elusive, evasive and very disturbing. However, I will be supporting this amendment because, as bad as it is, it is better than what was there before.

The Hon. M. PARNELL: I am supporting this amendment. In response to the Hon. Caroline Schaefer's concerns, I think that she may well have missed the point. The way I see this provision working is to say that, when an important document such as a management plan becomes available for people to comment on, we want to make sure that important stakeholders do not miss out on knowing that it is available and that they can comment on it, which is why I think that the whole of clause 14, which talks about putting things on the web and in the newspaper, is a fairly standard public notification clause. The introduction of the web, I think, is also important.

The alternative to the sector-based list of notifications would be to identify actual organisations. I think there are still some acts of parliament that require ministers to consult with the United Farmers and Stock Owners, for example, an organisation that does not exist any more. So, I think it makes sense to describe these peak organisations in terms of sectors and industries. What the Hon. Caroline Schaefer seemed most concerned about was something that I do not believe is in the bill (and the minister will correct me if I am wrong); this idea of regional consultative committees. You do not need legislation to establish them: they will be established, I guess, by administrative action.

My understanding is that that model has worked very well in the terrestrial environment, where regional consultative committees have been of great benefit to the National Parks and Wildlife Service in managing difficulties with its neighbours, if you like, especially in farming communities. It is my understanding (and I will ask the minister to clarify this) that these proposed consultative committees (and whether there is one per park or whether they are regionally based I do not think matters much) will be created outside this legislation. They are not part of the bill but, if the minister can assure us (and perhaps assure the Hon. Caroline Schaefer) that the types of interests that are proposed to be included in paragraph (4) are the types of interests that would be involved in a regional consultative committee, that might be helpful to the committee.

The Hon. G.E. GAGO: The answer is yes, in response to both the Hon. Mark Parnell's questions. We do not need legislation to establish the consultative committees: we can do that through an administrative act. They are the kinds of interests that we would be looking for, as well as those locally who are prepared to put up their hand and take an active interest.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 13—

Line 22—After 'management plan' insert 'and impact statement'.

Line 24—After 'plan' insert 'and impact statement'.

Line 29—After 'plan' insert 'and impact statement'.

These amendments require the government to publish the impact statement, along with the draft management plan, on a website determined by the minister, and also require that they be available for inspection without charge or purchase at a place or places determined by the minister. They require that the government must, by notice published in the Gazette, in a newspaper circulated generally within the state and on a website determined by the minister, give notice of the place or places at which copies of the impact statement, along with the draft management plan, are available for inspection.

Amendments carried.

The Hon. G.E. GAGO: I move:

Page 13, lines 36 to 38—Delete subsection (6) and substitute:

(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)(e).

This amendment provides that, if in the minister's opinion a draft amendment is not substantive in nature, the minister need not prepare a statement of environmental, economic and social values or an impact statement or undertake the mandatory public consultation requirements: 'is not substantive in nature' refers to issues that are not significant, such as an administrative or typographical error.

The Hon. M. PARNELL: The key to this amendment (and the words are already there in the existing bill) are the changes to the management plan that are not substantive in nature. I wish to test three scenarios and have the minister tell me whether or not they are substantive. The first would be a change to an internal zone boundary and whether that could possibly be regarded as non-substantive; secondly, any change to access arrangements, such as who is or who is not allowed or the circumstances in which they are or are not allowed to attend or visit an area; and, thirdly, whether a change to any lists of permitted or prohibited activities in marine parks might be regarded as not substantive.

The Hon. G.E. GAGO: The three examples the Hon. Mark Parnell lists would all be considered to be substantive in nature. The sorts of examples that would be considered not to be substantive in nature would be where the Great Barrier Reef Marine Park Authority inadvertently published an incorrect GPS coordinate that placed the end of a zone in the middle of the Coral Sea. Clearly this was an administrative error that needed to be rectified without the need to prepare a values and impact statement or undertake public consultation.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 14—

Lines 3 to 6—Delete paragraph (a) and substitute:

(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

Lines 13 to 14—Delete 'after a management plan is declared to be an authorised management plan' and substitute 'after the declaration of an initial management plan for a marine park'.

These amendments are consequential on the expanded consultation amendment.

Amendments carried; clause as amended passed.

New clause 14A.

The Hon. G.E. GAGO: I move:

Page 14, after line 20—insert:

14A—Parliamentary scrutiny

(1) On the declaration by the Governor of a draft management plan to be an authorised management plan the Minister must, within 28 days, refer the plan to the Environment, Resources and Development Committee of the Parliament.

(2) The Environment, Resources and Development Committee must, after receipt of a plan under subsection (1)—

(a) resolve that it does not object to the plan; or

(b) resolve to suggest amendments to the plan; or

(c) resolve to object to the plan.

(3) If, at the expiration of 28 days from the day on which the plan was referred to the Environment, Resources and Development Committee, the Committee has not made a resolution under subsection (2), it will be conclusively presumed that the Committee does not object to the plan and does not itself propose to suggest any amendments to the plan.

(4) If an amendment is suggested under subsection (2)(b)—

(a) the Minister may, by notice in the Gazette, proceed to make such an amendment to the plan; or

(b) the Minister may report back to the Committee that the Minister is unwilling to make the amendment suggested by the Committee (and, in such a case, the Committee may resolve that it does not object to the plan as originally made, or may resolve to object to the plan).

(5) If the Environment, Resources and Development Committee resolves to object to a plan, copies of the plan must be laid before both Houses of Parliament.

(6) If either House of Parliament passes a resolution disallowing a plan laid before it under subsection (5), the plan ceases to have effect.

(7) A resolution is not effective for the purposes of subsection (6) unless passed in pursuance of a notice of motion given within 14 sitting days (which need not fall within the same session of Parliament) after the day on which the plan was laid before the House.

(8) If a resolution is passed under subsection (6), notice of the resolution must immediately be published in the Gazette.

(9) This section does not apply to an initial management plan for a marine park.

This looks at the expansion of the level of accountability for marine parks and to expand that level of accountability even further. It also determines that it is appropriate to require that any future changes to management plans governing activity in the parks be referred to the Environment, Resources and Development Committee of parliament for review. This is to allow parliamentary scrutiny of changes made after the initial plan has been developed through an extensive public consultation process.

The Hon. C.V. SCHAEFER: The opposition supports this amendment. It does allow for a reasonably transparent system of scrutiny by the parliament and, therefore, by the public.

New clause inserted.

Clause 15 passed.

Clause 16.

The Hon. D.G.E. HOOD: I move:

Page 14, after line 36—

(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.

This is a very simple amendment. Essentially, it seeks to ensure that any recreational fisher using a rod and line or a hand-line who happens to stray into one of these zones completely by accident, who is not aware of what they are doing (and it seems there is some support within the chamber), initially be given a written warning before they are slapped with a fine. This is a way of ensuring that, should people who are genuinely trying to do the right thing accidentally do the wrong thing, they are given a fair warning rather than receive a nasty fine before they go home for the day.

The Hon. G.E. GAGO: As I indicated in my second reading summary, the government supports this amendment. The Hon. Dennis Hood has sought to provide certainty to recreational fishers in South Australia that they receive a warning if they inadvertently stray into a sanctuary zone whilst angling for their dinner. This is unusual for legislation and is normally an administrative practice, but I am happy to support the amendment to demonstrate the government's goodwill towards the state's recreational fishers. Obviously, I still urge all recreational fishers to become actively involved in shaping our marine parks through the various consultation and community engagement provisions contained within the bill.

The Hon. M. PARNELL: I support this amendment. However, I indicate that I would not have supported the original amendment drafted by the Hon. Dennis Hood because I thought that providing what would effectively be open slather recreational rod and line fishing went too far. I know that the honourable member has taken on board some of the information provided about the effect of the recreational catch on some of our species stock.

The real test for community acceptance of this legislation will, I think, depend largely upon education. I believe that if a person did not come across any signs on the beach or anywhere near the marine park, if information was poor, then it is appropriate they not have the book thrown at them for an accidental first offence. On the other hand, I would like to think that the government, in the roll-out of these parks, will go to great lengths to tell people where these parks are, where their boundaries are, and what is or is not allowed in different parts—so, hopefully, people will do the right thing. However, I think this provides a reasonable compromise; it lets people off for a first offence (as it were), and it is only if there is recidivism, if they say, 'Well, we're going to come back and fish anyway', then criminal penalties will apply. I commend the honourable member for this amendment which, I think, improves the legislation.

Amendment carried; clause as amended passed.

Clauses 17 to 19 passed.

Clause 20.

The CHAIRMAN: I understand there are two amendments to clause 20: one in the name of the minister and the other in the name of the Hon. Caroline Schaefer. I believe they say different things, but they do refer to the same lines. If the minister would move her amendment then the Hon. Caroline Schaefer can move hers.

The Hon. G.E. GAGO: I move:

Page 16, lines 35 to 39 and page 17, lines 1 to 11—Delete subsections (1) and (2) and substitute:

(1) lf 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.

This amendment seeks to provide industry with certainty that compensation must be provided to any holder of a statutory authorisation, commercial fisher or aquaculture operator affected by the creation of a zone or the imposition of a temporary prohibition or restriction of activities within a marine park. This amendment is identical to the amendment prepared by the Liberal opposition in consultation with SAFIC and other industry representatives, and it has been welcomed by industry, as it addresses their concerns.

The Hon. C.V. SCHAEFER: Mr Chairman, you have said that the amendments say different things. Having been, I think, conned a couple of times so far in this debate, I seek to know what different things it does say, because my understanding is that the amendments are identical. The minister has put on file the same amendment as I had on file. If that is the case, I will not proceed with my amendment. However, I would like it noted that I did place that amendment on file first.

The Hon. G.E. GAGO: I have been advised that the amendments are identical.

Amendment carried; clause as amended passed.

Clause 21.

The Hon. G.E. GAGO: I move:

Page 17, lines 21 and 22—Delete paragraph (b) and substitute:

(b) to seek and assess community nominations for marine parks after taking into account the objects of this act;

I am advised that this is only a very minor amendment to seek and assess community nominations for marine parks after taking into account the objects of the act. So, it is linking the broader objects of the act to that nomination process.

Amendment carried; clause as amended passed.

New clauses 22A to 22G.

The Hon. C.V. SCHAEFER: I move:

Page 18, after line 19—Insert:

Division 1A—Marine Parks Council of South Australia

22A—Establishment of Council

(1) The Marine Parks Council of South Australia is established.

(2) The Council consists of—

(a) 10 members appointed by the Governor on the nomination of the Minister; and

(b) the Chief Executive (ex officio), or a person for the time being nominated by the Chief Executive to be a member of the Council.

(3) Of the members appointed on the recommendation of the Minister—

(a) 1 must be a person who has knowledge of, or experience in, the field of commercial fishing;

(b) 1 must be a person who has knowledge of, or experience in, the field of aquaculture;

(c) 1 must be a person who has knowledge of, or experience in, the field of recreational fishing;

(d) 3 must be persons who have knowledge of, or experience in, the field of marine conservation;

(e) 2 must be persons who have qualifications or experience in a field of science that is relevant to the marine environment;

(f) 1 must be a person who has extensive involvement in community affairs;

(g) 1 must be a person who has extensive knowledge of indigenous culture, especially in connection with the marine environment.

(4) Each person appointed to the Council must be a person who can demonstrate knowledge of, or an interest in, the requirements necessary to manage the marine environment in a responsible manner.

(5) Before nominating a person or persons for appointment to the Council, the Minister must—

(a) by notice published in a newspaper circulating generally throughout the State, invite expressions of interest for appointment to the Council within a period specified in the notice; and

(b) take reasonable steps to consult with a body or bodies that, in the Minister's opinion, represent the interests reflected by the relevant appointment.

22B—Presiding member and deputy presiding member

(1) The Minister must appoint 1 of the members of the Council (the presiding member) to preside at meetings of the Council.

(2) The Minister may appoint another member of the Council to be the deputy of the presiding member (the deputy presiding member) to preside at meetings of the Council in the absence of the presiding member.

22C—Terms and conditions of membership

(1) An appointed member of the Council will be appointed on conditions determined by the Governor and for a term, not exceeding 3 years, specified in the instrument of appointment and, at the expiration of a term of appointment, is eligible for reappointment.

(2) However, an appointed member of the Council may not hold office for consecutive terms that exceed 6 years in total.

(3) The Governor may remove an appointed member of the Council from office—

(a) for breach of, or non-compliance with, a condition of appointment; or

(b) for misconduct; or

(c) for failure or incapacity to carry out. official duties satisfactorily.

(4) The office of an appointed member of the Council becomes vacant if the member—

(a) dies; or

(b) completes a term of office and is not reappointed; or

(c) resigns by written notice to the Minister; or

(d) ceases to satisfy the qualification by virtue of which the member was eligible for appointment to the Council; or

(e) is absent without leave of the presiding member of the Council from 3 consecutive meetings of the Council; or

(f) is removed from office under subsection (3).

22D—Vacancies or defects in appointment of members

An act or proceeding of the Council is not invalid by reason only of a vacancy in its membership or a defect in the appointment of a member.

22E—Remuneration

An appointed member of the Council is entitled to remuneration, allowances and expenses determined by the Minister.

22F—Functions of Council

(1) The Council has the following functions:

(a) to provide advice to the Minister on the establishment of marine parks, including 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.

22G—Council's procedures

(1) A majority of the appointed members of the Council constitutes a quorum of the Council.

(2) If the presiding member and the deputy presiding member of the Council are both absent from a meeting of the Council, a member chosen by the appointed members present at the meeting will preside.

(3) A decision carried by a majority of the votes cast by the appointed members of the Council at a meeting is a decision of the Council.

(4) When a matter arises for decision at a meeting of the Council—

(a) each appointed member present at the meeting (other than the member presiding at the meeting) has a deliberative vote; and

(b) if the deliberative votes are equal, the member presiding at the meeting may exercise a casting vote,

(and the person appointed under section 22A(2)(b) does not have a vote).

(5) A conference by telephone or other electronic means between the members of the Council will, for the purposes of this section, be taken to be a meeting of the Council at which the participating members are present if—

(a) notice of the conference is given to all members in the manner determined by the Council for the purpose; and

(b) each participating member is capable of communicating with every other participating member during the conference.

(6) A proposed resolution of the Council becomes a valid decision of the Council despite the fact that it is not voted on at a meeting of the Council if—

(a) notice of the proposed resolution is given to all members of the Council in accordance with procedures determined by the Council; and

(b) a majority of the appointed members express concurrence in the proposed resolution by letter, telegram, telex, fax, e-mail or other written communication setting out the terms of the resolution.

(7) The Council must have accurate minutes kept of its meetings.

(8) Subject to this Act and any direction of the Minister, the Council may determine its own procedures.

This quite long amendment provides for the setting up of a marine parks council, including the powers and duties of the council, and it provides for the necessity for the minister to take notice of that council. I spoke to the amendment earlier, and a number of consequential amendments have already been passed.

The Hon. G.E. GAGO: As previously indicated, the government supports this amendment; I have previously outlined the reasons for our support.

The Hon. M. PARNELL: I move to amend the Hon. Ms Schaefer's amendment as follows:

New Division—

Page 18, after line 19—

New section 22F(1)(a)—delete paragraph (a) and substitute:

(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;

This amendment is consequential on two things: first, the right of the community to make nominations for marine parks; and, secondly, the creation of the marine parks council, which we have already approved through the Hon. Caroline Schaefer's amendments. My amendment is fairly straightforward, and it basically provides that, as we now have the marine parks council, part of its job should be to provide advice to the minister on the establishment of marine parks, including advice on any community nominations for marine parks and advice on the areas to be specified as marine parks. It basically makes it clear that part of the job of this new council is to look at community nominations and, accordingly, to make recommendations to the minister.

The Hon. C.V. SCHAEFER: The opposition supports the amendment.

The Hon. G.E. GAGO: The government supports the amendment.

The Hon. M. PARNELL: At the risk of being pedantic, I would like to invite the Hon. Caroline Schaefer to revisit this question about whether, in her amendment where we have the list of expertise of members on the marine parks council, she would be agreeable to paragraph (3)(d)—

The Hon. C.V. Schaefer interjecting:

The Hon. M. PARNELL: You say no. I will not pursue that line of inquiry and I will simply move my amendment to the Hon. Caroline Schaefer's amendment.

The CHAIRMAN: What about your amendment to insert 22H?

The Hon. M. PARNELL: I move:

New division, page 18, after line 19—

After section 22G insert:

22H—Conflict of interest

(1) A member of the council who has a direct or indirect pecuniary or personal interest in a matter decided or under consideration by the council—

(a) must disclose the nature of the interest to the council; and

(b) must not take part in any deliberations or decisions of the council on the matter.

Maximum penalty: $4,000.

(2) It is a defence to a charge of an offence against subsection (1) to prove that the defendant was not, at the time of the alleged offence, aware of his or her interest in the matter.

(3) A disclosure under this section must be recorded in the minutes of the council.

This is a fairly straightforward amendment and simply includes a standard conflict of interest clause, which is appropriate for all statutory bodies. I think it is an omission to have a statutory body, such as the marine parks council, without a conflict of interest clause, which basically requires people to disclose direct or indirect pecuniary or personal interests and to not take part in discussions or deliberations where there is a conflict of interest, and it creates a criminal penalty for breaching those conflict of interest provisions. It is not a remarkable clause: in fact, it is replicated in almost all statutory bodies.

The Hon. G.E. GAGO: The government supports this amendment. It is consistent with other legislation and we believe it adds a level of certainty and protection.

The CHAIRMAN: Do you support both of the Parnell amendments?

The Hon. G.E. GAGO: Yes, the government supports both amendments.

The Hon. C.V. SCHAEFER: Does that mean then that a person who has knowledge of or experience in the field of commercial fishing who is appointed by the minister is obviously going to have a pecuniary interest? While I have no objection and, in fact, I thoroughly agree that that interest should be published and declared, is the Hon. Mr Parnell suggesting that they may then not take any part in the deliberations of the council?

The Hon. M. PARNELL: The way I look at this is if, for example, the council was discussing the plan of management for area X and the person who is the commercial fishing expert on the council says, 'I make my living fishing in area X', then I think that is a direct conflict of interest. However, the fact of that person being involved in commercial fishing or having what it terms 'knowledge of and experience in the field of commercial fishing' I would have thought that in the absence of a more direct personal conflict of interest that the fact of involvement in the commercial fishing industry probably would not preclude them from a debate on the marine parks council about commercial fishing in marine parks.

My understanding of the rules of conflict of interest is that, whilst my amendment talks about direct or indirect pecuniary or personal interest, they would need to be interpreted, in a way, otherwise I think the Hon. Caroline Schaefer's thoughts might be that any person connected with any part of the commercial fishing industry is precluded from discussing any management plan, and I do not think that that type of interpretation of a conflict of interest clause would in fact occur. So, I think these provisions are fairly safe. This one, from memory, is modelled on the Fisheries Management Act conflict of interest provision, or other legislation at least, so the words have been used elsewhere and they seem to have survived the test of time in other legislation. That is my answer to the honourable member.

The Hon. C.V. SCHAEFER: Given that assurance I support the amendment.

The Hon. D.G.E. HOOD: In the case of an owner of a bait and tackle shop for recreational fishers in an area offshore that was to be influenced by a decision that was to be made, would the Hon. Mr Parnell see that as a potential conflict of interest, if an area was adjacent to the store in question?

The Hon. M. PARNELL: The owner of a bait and tackle shop would have to fulfil one of the criteria for membership of the council, so the situation would only arise if that person was also one of these other 10 people, perhaps a commercial fisher who ran a bait shop in their spare time. I personally would not have thought that that would provide a direct interest. The other thing is that when you look at conflict of interest provisions there are two sides to it: there is the disclosure and then there is the not taking part in deliberations. It is always a question of fact and degree as to how big an interest it is, and it is very common on statutory bodies for people to say, 'Well, I have this interest, and I think it's pretty remote', and other members might say, 'No, you're right, you keep going with deliberations'. Ultimately it is up to the person concerned because you are the one who wears it, if it is found that you did have a conflict and you did not declare it. But I would think that, as it has in other statutory committees, common sense would prevail and the interest would need to be fairly direct for someone to attract the criminal penalties that attach to conflict of interest provisions. So, I do not see it as a big danger area.

The alternative would be not having a conflict of interest provision which would lead to outrageous situations, potentially, where people with direct interests are able to engage. In fact, the very first court case I won in South Australia was precisely a committee that did not have conflict of interest provisions, and the Crown Solicitor's Office said, 'We cannot defend the decisions that have been made by this committee.' I won that court case in the Environment Resources and Development Court against the Aquaculture Committee of the Development Assessment Commission without a single legal argument in court, because the Crown said, 'No, we cannot have commercial aquaculture operators, commercial fishers and their industry representatives on the decision-making body when deciding whether aquaculture developments can go ahead or not.' So, I just give that as an example, that the absence of a conflict of interest clause leads to all sorts of strife. I, for one, am prepared, in this case at least, to trust the good judgment of the authorities not to chase people for very minor—what I would not call conflicts of interest, but where it is just an interest, because we want people who are interested to be part of this marine parks council.

The Hon. C.V. Schaefer's amendment to insert new sections 22A, 22B, 22C, 22D and 22E agreed to; the Hon. M. Parnell's amendment to insert new section 22F(i)(a) agreed to; new section 22F as amended agreed to; the Hon. C.V. Schaefer's amendment to insert new section 22G agreed to; the Hon. M. Parnell's amendment to insert new section 22H agreed to.

Clause 23.

The Hon. G.E. GAGO: I move:

Page 18, line 27—After 'Minister' insert:

, being persons who must, in either case, be employed in the Public Service of the State

My staff have been meeting with the Local Government Association and various local councils, and it has become evident that this sector is concerned about the state government's delegating powers to local government without expressed agreement. Marine parks, like their terrestrial counterparts, are a community asset, and all funding for their establishment and management will be met by the government. This is not a cost shifting or a cost recovery exercise. To address local government's concerns, the government has filed amendments to clause 23 (appointment of authorised officers) to make explicit that these officers must be in the employment of the state. However, we have included some flexibility to enable officers of a local council to be appointed as an authorised officer at the request of the council.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 18, after line 27—Insert:

(1a) 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.

Amendment carried; clause as amended passed.

Remaining clauses (24 to 38) and title passed.

Bill reported with amendments; committee's report adopted.

Third Reading

The Hon. G.E. GAGO (Minister for Environment and Conservation, Minister for Mental Health and Substance Abuse, Minister Assisting the Minister for Health) (17:56): I move:

That this bill be now read a third time.

The Hon. SANDRA KANCK (17:57): I want to make a few observations about what has happened in relation to this bill. Having gone through the process of second reading, the Hon. Caroline Schaefer spoke to me about some of her concerns and indicated that she would convene a meeting to discuss some of the issues and, principally, her concern for the need for the council that has now been established in these amendments. She duly did so, and there was a meeting with her, Mark Parnell and me, as well as the fishing industry and the environment movement. I have to say that, if the Hon. Mark Parnell or I had convened that meeting, the fishing industry would have been much more suspicious of the motives, so Caroline had a very important role to play. As I mentioned earlier, I had said in my second reading contribution that I would move amendments but, as a consequence of the good work undertaken by the Hon. Caroline Schaefer, that became unnecessary. I think that the process of putting together those amendments arguably forced the government to come up with some of its own amendments.

The consequence is that we have a bill which I think, in its amended form, is a great improvement for all the stakeholders. I think it is another example of the excellent way in which the Legislative Council operates. We see so often that, when bills are introduced or processed in the lower house, any opposition is effectively quashed. What we have seen with this bill is that opposition has been expressed, differing points of view have been argued out and, where possible, amendments have been proposed. The consequence is that we have a bill leaving this chamber in a much better form than that in which it was introduced. I think it is a tribute to all those involved—the Hon. Caroline Schaefer, the Hon. Dennis Hood, the Hon. Mark Parnell, people from the fishing industry, the minister and the environment movement. In a sense, everyone is a winner, and I personally have been very impressed by the way the Legislative Council has gone about this.

Bill read a third time and passed.

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