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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-05-15 Daily Xml
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Question Time

GREAT AUSTRALIAN BIGHT MARINE PARK WHALE SANCTUARY

The Hon. D.W. RIDGWAY (Leader of the Opposition) (14:18): I seek leave to make a brief explanation before asking the Minister for Sustainability, Environment and Conservation questions regarding a tax on the sky.

Leave granted.

The Hon. D.W. RIDGWAY: Last sitting week, the opposition exposed that the state government was imposing a sky tax, charging planes to fly through the air above the Great Australian Bight. The right whales are in the water, the planes are in the air and never the twain, we hope, will meet.

Since then political commentators have questioned the constitutional validity of the tax. I understand that the minister believes that he has the power to raise this tax under the National Parks and Wildlife (Protected Animals—Marine Mammals) Regulations, which fall under the National Parks and Wildlife Act 1972. In 1972 planes, such as the Vickers Viscount, had propellers. McDonnell Douglas was producing the DC-8, which first flew in 1958. In 1972, right whales were still being harpooned for their blubber in Australian territorial waters by Australians. As I understand it, the commonwealth, not the state, has the power to impose aviation fees and taxes, certainly those which relate to interstate aviation. My questions are:

1. Is the minister's sky tax to fly over a state marine park constitutionally legal?

2. Would the tax be legal if the operator made an interstate flight? Could the operator nip into Western Australian airspace for a few seconds, touch a wing into the sky above WA, to escape Labor's sky tax?

3. What is the tax status of cheilopogon spilopterus, which also takes to the air in the Great Australian Bight Marine Park? The minister might know it as the many-spotted flying fish.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (14:20): Can I say that the only thing the opposition exposed is itself, and it wasn't a very pleasant experience, I can say. On FIVEaa that day, the Hon. Mr Ridgway exposed himself to the public, and I don't think they took a very charitable view of his understanding of the situation. So, let me give him some further advice to what I gave him on the day.

Chinta Air is one of many important nature-based tourism businesses that provide the public with an opportunity to view South Australia's wildlife; they are not alone in this. The business operates over the Great Australian Bight Marine Park Whale Sanctuary, which was established under the Fisheries Act in 1995. The Great Australian Bight Marine Park Whale Sanctuary is an important breeding area for southern right whales. The southern right whale is listed as endangered under the Australian government's Environment Protection and Biodiversity Conservation Act 1999 and is listed as vulnerable under South Australia's National Parks and Wildlife Act 1972.

To ensure a coordinated approach to the recovery of the southern right whale across all jurisdictions, the Australian government developed the Southern Right Whale Recovery Plan 2005-2010. This plan included an action to manage the potential impacts of tourism through the application of consistent commonwealth and state tourism and whale watching regulations. To ensure a coordinated approach to the regulation of whale watching across all jurisdictions, the Australian government developed the Australian National Guidelines for Whale and Dolphin Watching.

These guidelines, I am told, were jointly developed by the relevant Australian state and Northern Territory government agencies and were endorsed by the Natural Resource Management Ministerial Council at its meeting on 22 October 2005. Each of the relevant agencies subsequently committed to the development of state-based regulations to achieve a consistent regulatory approach to whale watching as guided by the national guidelines.

To give effect to these guidelines in South Australia, regulations on the National Parks and Wildlife Act were created by the South Australian government in 2010. Four prescribed areas under the National Parks and Wildlife (Protected Animals—Marine Mammals) Regulations 2010 provide the highest level of protection for marine mammals in South Australian waters. They are: the Great Australian Bight Marine Park Whale Sanctuary Restricted Area, the Encounter Bay Restricted Area, the Adelaide Dolphin Sanctuary, and the Adelaide Metropolitan Beaches Restricted Area.

The management of air space is subject to regulations and policies administered by the Australian government's Civil Aviation Safety Authority; however, the protection of whales in South Australian waters is subject to the South Australian law. The South Australian regulations ensure that marine mammals are protected against human disturbance in South Australian waters. This includes imposing limits on how close people and vessels may approach marine mammals, including in relation to altitude of aircraft.

These regulations mean that commercial tour operators cannot undertake aircraft-based whale watching tours within the Great Australian Bight Marine Park Whale Sanctuary unless they have a marine mammal interaction permit. In 2012, Chinta Air was granted a permit to conduct commercial whale viewing in this area. This permit expired on 31 March 2013. I understand they have recently applied to renew this permit.

The granting of the permit enables the Department of Environment, Water and Natural Resources to properly manage and monitor the level of tourism activity at this important whale calving site to ensure that it is not detrimental to their welfare. It also enables the department to work collaboratively with tourism operators, such as Chinta Air, to ensure that tourism practices are consistent with the national guidelines. These permits enable a tour operator to undertake aircraft-based whale watching over a whale sanctuary which otherwise would not be permitted.

A condition of such permits is that they comply with altitude restrictions as set out in the regulations. Advice given to me is that the cost of a standard annual marine mammal interaction permit is $350. This fee was established in the regulations in 2010 and partially covers the costs incurred by the department in reviewing, preparing and granting a marine mammal interaction permit. The fee is not associated with covering any monitoring or compliance costs.

I understand that several commercial tour operators provide scenic aircraft tours over parks elsewhere in the state. These businesses are not required to have a mammal interaction permit or pay a fee as they do not run tours that impact on marine mammals. It is all about the marine mammal, not about the air.

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