Marine and Coastal Bill2017

Introduction Print

EXPLANATORY MEMORANDUM

581344

BILL LA INTRODUCTION 12/12/2017

General

The Bill principally repeals and partially re-enacts the Coastal Management Act 1995 and provides for the integrated and co-ordinated planning and management of the marine and coastal environment of Victoria.

Clause Notes

Part 1—Preliminary

Clause 1sets out the main purposes of the Bill, which are—

  • establishing an integrated and co-ordinated whole-of-government approach to protect and manage Victoria's marine and coastal environment; and
  • providing for integrated and co-ordinated policy, planning, management, decision-making and reporting across catchment, coastal and marine areas; and
  • repealingand partially re-enacting the Coastal Management Act 1995.

Further, the Bill will—

  • establish objectives and guiding principles for planning,management and decision making under this Act;
  • replace the Victorian Coastal Council with the Marine and Coastal Council; and
  • abolish the Regional Coastal Boards; and
  • provide for the preparation of a Marine and Coastal Policy, a Marine and Coastal Strategy, and a State of theMarine and Coastal Environment Report; and
  • provide for the formation of regional and strategic partnerships to address regional and issue-based marine and coastal planning; and
  • provide for other planning mechanisms in the form ofenvironmental management plans and coastal and marine management plans; and
  • provide for the giving of consents to use or develop orundertake works on marine and coastal Crown land and establish an application process; and
  • allow coastal Catchment Management Authorities and the Melbourne Water Corporation to provide advice on matters relating to and affecting coastal erosion; and
  • allow the Secretary to prepare and publish guidelines toassist with the implementation of this Act; and
  • create offences and other enforcement mechanisms relating to the unauthorised use or development of orworks on marine and coastal Crown land; and
  • amend various other Acts to provide for integrated and co-ordinated management of the marine and coastal environment of Victoria.

Clause 2provides for the commencement of the Bill. The provisions of the Bill come into operation on a day or days to be proclaimed. Any provisions that have not come into operation before 1October 2018 will come into operation on that day.

Clause 3sets out definitions of various terms used in the Bill. These are—

applicable Act meansthe Catchment and Land Protection Act1994; the Crown Land (Reserves) Act 1978; the Environment Protection Act 1970; the Fisheries Act 1995; the Flora and Fauna Guarantee Act 1988; the Forests Act 1958; the Geothermal Energy Resources Act 2005; the Greenhouse Gas Geological Sequestration Act 2008; the Heritage Act2017; the Land Act 1958; the Marine (Drug, Alcohol and Pollution Control) Act 1988; the Marine Safety Act 2010; the Mineral Resources (Sustainable Development) Act 1990; theNational Parks Act 1975; the Offshore Petroleum and Greenhouse Gas Storage Act 2010; the Petroleum Act 1998; the Pipelines Act 2005; the Planning and Environment Act1987; the Pollution of Waters by Oil and Noxious Substances Act 1986; the Port Management Act 1995; theTransport Integration Act 2010;the Underseas MineralResources Act 1963;the Water Act 1989;theWildlifeAct 1975;

authorised officer has the same meaning as in the Conservation, Forests and Lands Act 1987;

Catchment Management Authority has the same meaning as Authority has in the Catchment and Land Protection Act 1994;

coastal and marine management plan means a plan made under Division 1 of Part 7 of the Bill;

coastal Catchment Management Authority means a Catchment Management Authority whose waterway management district, in whole or in part, overlaps with or abuts the marine and coastal environment;

Commissioner for Environment Sustainability has the same meaning as Commissioner has in section 8 of the Commissioner for Environmental Sustainability Act 2003;

consent means—

  • a consent given in a coastal and marine management plan under clause 62; or
  • a consent given under clause 70; or
  • a prescribed consent;

Council means the Marine and Coastal Council established under Part 3 of the Bill;

Crown land means land which is, or is taken to be, unalienated land of the Crown and includes—

  • land of the Crown reserved permanently or temporarily or set asideby or under an Act; and
  • land of the Crown occupied by a person under a lease, licence or other right; and
  • land of the Crown managed by a public authority or committee of management; and
  • land of the Crown which is, or is part of, a park within the meaning of the National Parks Act 1975;

Crown land manager means a person or body responsible for the management of Crown land;

Department means the Department of Environment, Land, Water and Planning;

development has the same meaning as in the Planning and Environment Act 1987;

environmental management plan means a plan made under Division 2 of Part 6 of the Bill;

marine and coastal Crown land has the meaning given by clause4;

marine and coastal environment has the meaning given by clause 5;

Marine and Coastal Policy means a Marine and Coastal Policy made under Division 1 of Part 4 of the Bill;

Marine and Coastal Strategy means a Marine and Coastal Strategy made under Division 2 of Part 4 of the Bill;

marine environment means the following between the outer limit of Victoria coastal waters and the high-water mark of the sea—

  • the land (whether or not covered by water) to a depth of 200metres below the surface of that land;
  • anywater covering the land referred to in the paragraph above from time to time;
  • the biodiversity associated with the land and water referred to in previous 2 paragraphs;

Melbourne Water Corporation has the same meaning as the Water Act 1989;

municipal council has the same meaning as Council has in the Local Government Act 1989;

native title holder has the same meaning as in section 224 of the Native Title Act 1993 of the Commonwealth;

partner agency means a government or non-government body that has an interest in or connection with the marine and coastal environment;

public authority means any body corporate or unincorporate established by or under an Act for a public purpose, but does notinclude a municipal council or a committee of management of reserved Crown land;

regional and strategic partnership means a regional and strategic partnership established under Division 1 of Part 6 oftheBill;

regional catchment strategy has the same meaning as in the Catchment and Land Protection Act 1994;

registered Aboriginal party has the same meaning as in the Aboriginal Heritage Act 2006;

relevant coastal recommendationmeans—

  • a recommendation of the Victorian Environmental Assessment Council relating to or affecting marine andcoastal Crown land that has been accepted by theGovernment under Part 3 of the Victorian Environmental Assessment Council Act 2001; or
  • a recommendation of the Land Conservation Council relating to or affecting marine and coastal Crown land under section 5(1) of the Land Conservation Act 1970 (as in force immediately before its repeal) of which notice has been given by the Governor in Council undersection 10(3) of that Act (so in force), where therecommendation does not relate to land that is the subject of a recommendation to which paragraph (a) applies;

sea means the sea within the limits of Victoria and includes—

  • a bay; and
  • an inlet; and
  • anestuary; and
  • the Gippsland Lakes; and
  • any waters within the ebb and flow of the tide, from time to time;

Secretary means the Body Corporate established by Division 1 ofPart 2 of the Conservation, Forests and Lands Act 1987;

specified Aboriginal party, in relation to an area, means any of the following—

  • if there are native title holders for the whole or part of the area—the native title holders;
  • ifthere is a traditional owner group entity appointed for the whole or part of the area and that traditional owner group entity is a party to a recognition and settlement agreement—the traditional owner group entity;
  • if there is a registered Aboriginal party within the meaning of the Aboriginal Heritage Act 2006 for the whole or part of the area—the registered Aboriginal party;

State environment protection policy has the same meaning as in the Environment Protection Act 1970;

State of the Marine and Coastal Environment Report means a State of the Marine and Coastal Environment Report made under Division 3 of Part 4 of the Bill;

traditional owner group has the same meaning as in the Traditional Owner Settlement Act 2010;

traditional owner group entity has the same meaning as in the Traditional Owner Settlement Act 2010;

use has the same meaning as in the Planning and Environment Act 1987;

Victorian coastal waters has the same meaning as the expression "coastal waters of the State" has in relation to Victoria under the Coastal Waters (State Powers) Act 1980 of the Commonwealth;

waterway management district has the same meaning as in the Water Act 1989;

works has the same meaning as in the Planning and Environment Act 1987.

Clause 4provides for the definition of marine and coastal Crown land for the purposes of the Bill.

Subclause (1) provides that subject to this clause, marine and coastal Crown land means the following between the outer limitof Victorian coastal waters and 200 metres inland of the high-water mark of the sea—

  • Crown land (whether or not covered by water) to a depth of 200 metres below the surface of that land;
  • any water covering the land referred to in the above paragraph from time to time.

Subclause (2) provides that in addition to subclause (1), marine and coastal Crown land includes Crown land (whether or not covered by water) and any water covering that land to a depth of 200 metres below the surface of that land and that is—

  • more than 200 metres inland of the high-water mark of the sea; and
  • reserved under the Crown Land (Reserves) Act 1978 for the purposes of the protection of the coastline.

Subclause (3) provides that any additional area of Crown land (whether or not covered by water) and any water covering that land may be declared by Order of the Governor in Council to be part of the marine and coastal Crown land for the purposes of the Bill. Any Order must be published in the Government Gazette.

Subclause (4) provides that any Crown land to which a declaration applies under subclause (3) includes the land to a depth of 200 metre below the surface of that land.

Subclause (5) provides that an area of marine and coastal Crown land may be declared by Order of the Governor in Council not to be marine and coastal Crown land for the purposes of the Bill. Any Order must be published in the Government Gazette.

Clause 5provides for the definition of marine and coastal environmentfor the purposes of the Bill.

Subclause (1) provides that marine and coastal environment means the following between the other limits of Victorian coastal waters and5kilometres inland of the high-water mark of the sea—

  • the land (whether or not covered by water) to a depth of 200 metres below the surface of that land;
  • any water coveringthe land referred to in the paragraph above from time to time;
  • the biodiversity associated with the land and water referred to in the 2 paragraphs above.

Subclause (2) provides that any additional area of land (whetheror not covered by water), any water covering that land and the biodiversity associated with that land and water may be declared by Order ofthe Governor in Council to be part of the marine and coastal environment for the purposes of this Act. Any Order must be published in the Government Gazette.

Subclause (3) provides that any land to which a declaration applies under subclause (2) includes the land to a depth of 200metres below the surface of that land.

Subclause (4) provides that any area that is within the marine and coastal environment may be declared by Order of the Governor in Council not to be part of the marine and coastal environment for the purposes of this Act. Any Order must be published in the Government Gazette.

Clause 6provides that the Bill binds the Crown in all its capacities, insofar as the power of the Parliament permits.

Part 2—Objectives and guiding principles for the planning and management of the marine and coastal environment

Part 2 of the Bill contains clauses 7 to 14, and sets out the high level objectives and guiding principles for decision makers to apply when preparing documents specified in the Bill or making decisions relating to theplanning and management of the marine and coastal environment.

Clause 7establishes the objectives for the planning and management of the marine and coastal environment in Victoria. These objectives are relevant for the purposes of clauses 16(2)(a), 25(1)(a), 32(1)(a), 46(1)(c), 51(1)(c), 59(1)(c), and 69(c). The objectives are—

  • to protect and enhance the marine and coastal environment; and
  • to promote the resilience of marine and coastal ecosystems, communities and assets to climate change;and
  • to respect natural processes in planning for and managing current and future risks to people and assets from coastal hazards and climate change; and
  • to acknowledge traditional owner groups' knowledge, rights and aspirations for land and sea country; and
  • to promote a diversity of experiences in the marine and coastal environment; and
  • to promote the ecologically sustainable use and development of the marine and coastal environment and its resources in appropriate areas; and
  • to improve community, user group and industry stewardship and understanding of the marine and coastal environment; and
  • to engage with specified Aboriginal parties, the community, user groups and industry in marine and coastal planning, management and protection.

Clause 8describes the principle of integrated coastal zone management. The principle provides that the planning and management of the marine and coastal environment should be co-ordinated and integrated, taking into account long-term and short-term environmental, social and economic considerations.

Clause 9describes the principle of ecosystem-based management. Theprinciple provides that the maintenance and, where appropriate, restoration of marine and coastal ecosystem structureand function is fundamental to the current and future use and enjoyment of Victoria's marine and coastal environment, its resources, and the ecosystem services provided. Further, an ecosystem-based approach should underpin Victoria's marine andcoastal planning and management system.

Clause 10describes the principle of ecologically sustainable development. The principle provides that use and development that affects the marine and coastal environment should be focussed on improving the total quality of life of Victorians, across current and future generations, in a way that maintains the ecological processes on which life depends.

Clause 11describes the principle of evidence-based decision-making. Theprinciple provides that marine and coastal planning and management decisions should be based on best available and relevant environmental, social and economic understanding, recognising that information will often be limited.

Clause 12describes the precautionary principle. The principle provides thatif there are threats of serious or irreversible environmental and other damage, lack of full certainty should not be used as a reason for postponing measures to prevent environmental or other degradation.

Clause 13describes the proportionate and risk-based principle. Theprinciple provides that risk management and regulatory approaches should be proportionate to the risk involved.

Clause 14describes the principle of adaptive management. The principle provides that decision makers should learn from the outcomes of operational programs and, in light of that, change policies and practices.

Part 3—Marine and Coastal Council

Part 3 of the Bill contains clauses 15 to 23, which establishes a statewide advisory body, to be named the Marine and Coastal Council (see clause 3 forthe definition of Council). The Council will provide guidance and strategic advice to theMinister. The Council will replace the Victorian Coastal Council, whichwill be abolished under clause 81 of the Bill. Thispart of the Bill includes provisions relating to the functions, membership, appointment and governance of the Council. The functions ofthe Council will enable it to provide independent advice on a range of matters related to the Bill, have a greater focus on the marine environment and establish committees to draw onexpertise beyond the membership oftheCouncil. The Council will provide guidance and advice on the development of statewide policy and strategy, however, the Minister willberesponsible for its preparation enabling a more integrated and coordinatedwhole of government approach.

Clause 15establishes the Marine and Coastal Council (the Council).

Clause 16specifies the functions of the Council. The functions are—

  • to provide guidance and strategic advice to the Minister on the development of the Marine and Coastal Policy and the Marine and Coastal Strategy;
  • to provide advice to the Minister on the implementation of the Marine and Coastal Policy and the Marine and Coastal Strategy;
  • to provide advice tothe Minister, as requested, on significant decisions under this Act relating to or affecting the marine and coastal environment;
  • to provide advice to the Minister on matters requiring scientific research;
  • toadvise the Secretary on the preparation of guidelines made under this Act;
  • to request the Minister to establish a regional and strategic partnership;
  • toprovide advice to the parties of a regional and strategic partnership on the preparation of a product under the partnership;
  • to provide advice to the Minister on the preparation of environmental management plans;
  • toprovide advice as requested by the Minister on any matter relating to or affecting the administration of the Bill;
  • to carry out any other function conferred on the Council by or under the Bill or any other Act.

Subclause (2) provides that the Council, in performing its functions, must have regard to the objectives and guiding principles for the planning and management of the marine andcoastal environment.