Part 1 Preliminary
1 Name of Regulations [see Note 1]
These Regulations are the Great Barrier Reef Marine Park (Aquaculture) Regulations 2000.
2 Commencement [see Note 1]
These Regulations commence on gazettal.
3 Definitions
In these Regulations:
accredited Queensland law means a law of Queensland accredited by the Minister under Part 2.
Act means the Great Barrier Reef Marine Park Act 1975.
aquaculture facility means a facility at which an aquaculture operation is carried on.
aquaculture operation means an operation for the propagation, rearing, keeping or breeding of an aquatic animal (including a fish, a crustacean, a reptile and a mollusc).
aquaculture waste means waste (whether liquid or solid) from an aquaculture operation.
permission means a permission given by the Authority under these Regulations to discharge aquaculture waste.
Part 2 Application of Queensland laws about aquaculture
4 Requisite degree of protection
For this Part, a law provides the requisite degree of protection for the Marine Park environment if it provides:
(a) a degree of protection for the environment of the Marine Park that complies with Australia’s obligations under:
(i) the Convention for the Protection of the World Cultural and Natural Heritage done in Paris on 23 November 1972; and
(ii) Part XII of the United Nations Convention on the Law of the Sea done at Montego Bay, Jamaica on 10 December 1982; and
(b) adequate protection from pollution for the animals and plants in the Marine Park.
Note For the English text of the United Nations Convention on the Law of the Sea, see Australian Treaty Series 1994 No. 31. For the English text of the Convention for the Protection of the World Cultural and Natural Heritage, see Australian Treaty Series 1975 No. 47.
5 Accreditation of Queensland law
(1) The Minister may accredit a law of Queensland for this Part if the Minister is satisfied that the law provides the requisite degree of protection for the Marine Park environment.
(2) The Minister may accredit a law under subregulation (1) only if the law is proposed for accreditation by the Minister of Queensland responsible for administering the law (the Queensland Minister).
(3) When the Queensland Minister proposes a law for accreditation, the Minister need not consider the proposal unless the Queensland Minister provides the Minister with enough information about how the law is administered to allow the Minister to decide whether the law provides the requisite degree of protection for the Marine Park environment.
(4) In considering whether to accredit a law, the Minister may take into account the effect of the law in combination with other Queensland laws.
(5) The Minister must publish a notice in the Gazette of his or her decision.
(6) An accreditation has effect from the day the notice of it is published in the Gazette.
(7) The Minister must also prepare, and make publicly available, a statement of the reasons for his or her decision.
6 Revocation of accreditation
(1) If the Minister has accredited a law under regulation 5, the Minister may revoke the accreditation if the Minister is satisfied that the law does not provide, or no longer provides, the requisite degree of protection for the Marine Park environment.
(2) In particular, the Minister may revoke the accreditation of a law if, because of the way it is administered, it does not provide that degree of protection.
(3) In considering whether to revoke the accreditation of a law, the Minister may take into account the effect of the law in combination with other Queensland laws.
(4) If the Minister revokes an accreditation of a law, he or she must publish a notice in the Gazette about the revocation.
(5) A revocation has effect from the day stated in the notice.
Note See r 17 as to the effect that revocation of the accreditation of such a law has on the discharge of aquaculture waste from an aquaculture facility the operation of which is authorised by the law.
(6) That day:
(a) must not be earlier than the day on which the notice is published; and
(b) must not be later than 1 year after the day on which the notice is published.
(7) The Minister must also prepare, and make publicly available, a statement of the reasons for the revocation.
7 Declaration limiting application of accredited law
(1) The Minister may declare that an accredited Queensland law is not taken to apply, for the purposes of these Regulations, in relation to a particular aquaculture facility.
Note The power to make the declaration in relation to a particular aquaculture facility includes the power to make such a declaration in relation to a particular class of such facilities — see the Act, subs 66 (9) and the Acts Interpretation Act 1901, subs 33 (3A).
(2) In considering whether to make such a declaration, the Minister:
(a) must take into account whether the law provides the requisite degree of protection, in relation to that facility, for the Marine Park environment; and
(b) may take into account the effect of the law in combination with other Queensland laws.
(3) In particular, the Minister may make such a declaration if the Minister is satisfied that, because of the way the relevant law is administered in relation to that facility, it does not provide that degree of protection for the Marine Park environment in relation to that facility.
(4) If the Minister makes such a declaration, he or she must publish it in the Gazette.
(5) A declaration has effect from the day stated in it.
Note See r 17 as to the effect that such a declaration has on the discharge of aquaculture waste from an aquaculture facility the operation of which is authorised by the law.
(6) That day:
(a) must not be earlier than the day on which the declaration is published; and
(b) must not be later than 1 year after the day on which the declaration is published.
(7) The Minister must also prepare, and make publicly available, a statement of the reasons for the declaration.
Part 3 Prohibition of discharge of aquaculture waste
8 Definition for Part 3
In this Part:
discharge has the meaning given by subsection 38J (7) of the Act.
9 Prohibition of discharge of aquaculture waste
(1) In subregulation (2):
controlled area means the part of Queensland the boundaries of which are:
(a) a line that is everywhere 5 kilometres inland (measured at right angles) of the line of the highest astronomical tide (that is, the highest tide that, under average meteorological conditions, can occur under any astronomical circumstances); and
(b) the parallel of latitude 24° 30¢ 00² south; and
(c) the western boundary of the Marine Park; and
(d) the parallel of latitude 10° 41¢ 20² south.
(2) Subject to this Part, a person must not discharge aquaculture waste to which this subregulation applies, or allow aquaculture waste to which this subregulation applies to be discharged, from an aquaculture facility within the controlled area:
(a) into coastal waters (whether or not part of Queensland) that are contiguous with the Marine Park; or
(b) into so much of a creek, estuary or river as is within the controlled area; or
(c) into a culvert or drain within the controlled area the discharge from which passes (whether or not through 1 or more other culverts or drains) into waters mentioned in paragraph (a), or a creek, estuary or river mentioned in paragraph (b); or
(d) on land at a place within the controlled area from which the waste (or material from, or from the decomposition of, the waste) may reasonably be expected to pass into waters mentioned in paragraph (a) or (b) or a culvert or drain mentioned in paragraph (c).
Penalty: 50 penalty units.
(2A) An offence under subregulation (2) is an offence of strict liability.
Note For strict liability, see section 6.1 of the Criminal Code.
(3) Subregulation (2) applies to aquaculture waste only if the waste, or a product of its decomposition, may pollute water in a manner harmful to animals or plants in the Marine Park.
(4) For paragraph (2) (a):
coastal waters includes a gulf, bay or passage that is part of Queensland.
(5) For section 4K of the Crimes Act 1914, the obligation imposed by subregulation (2) arises every day and must be complied with on that day.
10 Discharge of aquaculture waste with Authority’s permission
Regulation 9 is not taken to prohibit the discharge of waste from an aquaculture facility if the discharge is in accordance with a permission given by the Authority under Part 4.
11 Aquaculture facility already operating on 1 October 1999
(1) Regulation 9 prohibits the discharge of aquaculture waste from an aquaculture facility that was operating on 1 October 1999 (the existing facility) only if, after that day:
(a) the volume of aquaculture waste discharged is significantly increased; or
(b) the nature or composition of the aquaculture waste discharged alters in a significant way (that is, a way that makes the waste significantly more likely to pollute water in a way harmful to animals or plants in the Marine Park, or that makes the waste significantly more harmful to such animals or plants).
Meaning of operating
(2) For subregulation (1), an aquaculture facility was operating on 1 October 1999 if aquaculture products (including any product resulting from the operation at the facility) were produced in the facility and were sold before that day.
Meaning of significantly increased in paragraph (1) (a)
(3) For paragraph (1) (a), the volume of aquaculture waste discharged by an existing facility is significantly increased if the volume of waste discharged in a financial year after the commencing day is more than 10% greater than the facility’s pre‑1999 volume.
(4) For subregulation (3), to work out the pre‑1999 volume for an existing facility apply the following steps:
Step 1. Determine the volume of aquaculture waste discharged by the facility in each of the following periods:
(a) the 12 month period commencing 1 October 1996;
(b) the 12 month period commencing 1 October 1997;
(c) the 12 month period commencing 1 October 1998.
Note No permits for new aquaculture facilities were issued after 1 October 1996.
Step 2. The pre‑1999 volume for the facility is the greatest of the volumes determined under step 1.
Meaning of alters in a significant way in paragraph (1) (b)
(5) For paragraph (1) (b), the composition of aquaculture waste discharged by an existing facility alters in a significant way if, in a financial year after the commencing day, the mass of a constituent occurring in the waste for the financial year is more than 10% greater than the pre‑1999 mass for the constituent.
(6) For subregulation (5), to work out the pre‑1999 mass for an existing facility and a constituent apply the following steps:
Step 1. Determine the mass of each constituent occurring in waste in each of the following periods:
(a) the 12 month period commencing 1 October 1996;
(b) the 12 month period commencing 1 October 1997;
(c) the 12 month period commencing 1 October 1998.
Step 2. The pre‑1999 mass for a constituent for the facility is the greatest of the masses determined under step 1.
(7) In this regulation:
commencing day means the day that this subregulation commences.
constituent, in aquaculture waste, means any of the following:
(a) total suspended solids;
(b) total nitrogen;
(c) total phosphorus.
12 Discharge permitted by EPBC Act
Regulation 9 is not taken to prohibit the discharge of aquaculture waste from an aquaculture facility if the discharge is in accordance with an approval given under Part 9 of the Environment Protection and Biodiversity Conservation Act 1999 for section 12 of that Act.
13 Discharge of aquaculture waste from aquaria and personal aquaculture
Regulation 9 is not taken to prohibit the discharge of aquaculture waste from an aquaculture facility if:
(a) the facility is used for the display or breeding, for a purpose other than sale, trade or research, of aquatic animals in a tank or other artificial container; or
(b) the facility complies with both of the following conditions:
(i) the total surface area of water used for the aquaculture operation is not more than 1 hectare;
(ii) the facility does not carry on hatchery operations for the production of larvae.
14 Discharge of aquaculture waste from small aquaculture facility — concession
(1) This subregulation applies to an aquaculture facility if the facility meets both of the following conditions:
(a) the total surface area of water used for the aquaculture operation is greater than 1 hectare, but not greater than 5 hectares;
(b) the facility does not carry on hatchery operations for the production of larvae.
(2) Regulation 9 is not taken to prohibit the discharge of aquaculture waste from an aquaculture facility to which subregulation (1) applies.
(3) Subject to subregulation (4), the operator of an aquaculture facility to which subregulation (1) applies must:
(a) within 90 days after this regulation commences, tell the Authority, in writing:
(i) that the facility is operating, or when it is expected to begin to operate; and
(ii) where the facility is or will be (including the lot and registered plan numbers of the land on which it is or will be built, and the parish and county in which it is or will be located); and
(iii) what kind of aquaculture is being carried on, or will be carried on, at the facility; and
(iv) what kind of animal is or will be raised at the facility, and how many there are, or are likely to be, at a time; and
(v) details of any environmental management regime in effect at the facility; and
(vi) the volume of aquaculture waste discharged, or expected to be discharged, annually; and
(b) if circumstances change so that information given to the Authority under paragraph (a) is not true of the state of affairs after the change — as soon as practicable after the change, tell the Authority, in writing, the new information; and
(c) as soon as practicable after any unusual discharge of aquaculture waste (including a discharge unusually big in volume, a discharge that is of higher than usual concentration, or a discharge that is carrying a substance not usually found in the waste) from the facility — tell the Authority in writing; and
(d) tell the Authority annually what chemicals, foods, and hormones and other materials are or are expected to be put into the water in the facility, and the approximate amount or concentration of each.
Penalty: 50 penalty units.
(3A) An offence under subregulation (3) is an offence of strict liability.
Note For strict liability, see section 6.1 of the Criminal Code.
(4) Subregulation (3) does not apply to an aquaculture facility that was operating on 1 October 1999.
(5) For subregulation (4), an aquaculture facility was operating on 1 October 1999 if aquaculture products were produced in the facility and were sold before that day.
(6) In subregulation (5):
aquaculture product includes any product resulting from the relevant aquaculture operation.
(7) If the operator of an aquaculture facility contravenes subregulation (3), the operator may be convicted of the offence of contravening that subregulation even though the Authority has taken action under regulation 15 against the operator in respect of the contravention.
15 When concession ceases to apply
(1) In this regulation:
concessional aquaculture facility means an aquaculture facility to which subregulation 14 (1) applies.
(2) If there are reasonable grounds for believing that the operator of a concessional aquaculture facility has failed to supply
the Authority with any information that, under subregulation 14 (3), the operator is required to give the Authority, the Authority may require the operator, by notice in writing, to give reasons why the facility should continue to be treated as a concessional aquaculture facility.
(3) The notice must specify a reasonable time within which the operator must tell the Authority the reasons.
(4) If, after considering any reasons put forward by the operator of the facility, the Authority considers that the facility should not continue to be a concessional aquaculture facility, the Authority may give the operator a notice that the facility is no longer to be treated as a concessional aquaculture facility.
Note A decision to give a notice under subr (4) is a notifiable decision. For reconsideration and review of notifiable decisions, see Pt 6.
(5) Subregulation 14 (1) is taken to cease to apply to the facility at the end of the day on which the notice is served on the operator.
(6) The notice must:
(a) set out the reasons for the Authority’s decision; and
(b) state that a person whose interests are affected by the decision may ask the Authority to reconsider the decision; and
(c) state that a person who has asked for the reconsideration may apply, under the Administrative Appeals Tribunal
Act 1975, to the AAT for review of the decision after the reconsideration.
(7) The Authority’s failure to comply with paragraph (6) (a), (b)
or (c) about a decision does not make the decision invalid.
(8) If the operator of an aquaculture facility contravenes subregulation 14 (3), the Authority may take action under this regulation against the operator in respect of the contravention even if the operator has been convicted of the offence of contravening that subregulation.
16 Discharge of aquaculture waste permitted under accredited Queensland law
(1) Subject to subregulation (2) and regulation 17, regulation 9 is not taken to prohibit the discharge of aquaculture waste from an aquaculture facility if:
(a) the discharge is authorised by a licence or permission (however described) granted under an accredited Queensland law; and
(b) at the time of the discharge, the accreditation of the law is in effect.
(2) For paragraph (1) (a), if the Minister makes a declaration under regulation 7 about the law and the declaration applies to the facility, a licence or permission granted under the law is not taken to authorise the discharge of aquaculture waste from the facility.
(3) For subregulation (1), a licence or permission is taken to authorise the discharge of aquaculture waste from an aquaculture facility only if the licence or permission specifically authorises the discharge of waste of that kind from the facility.
(4) For paragraph (1) (b), the accreditation of a law ceases to have effect:
(a) when a revocation of the accreditation has effect; or
(b) in relation to an aquaculture facility in respect of which the Authority gives notice under regulation 17 — at the end of the day on which, under the notice, the operator of the facility must cease discharging aquaculture waste from it.
17 Notice to cease discharging waste — Queensland‑approved aquaculture facility
(1) This regulation applies to an aquaculture facility mentioned in subregulation 16 (1) if the Minister has revoked the accreditation of the relevant Queensland law but the revocation has not yet taken effect.
(2) If there are reasonable grounds for believing that the discharge of aquaculture waste from the facility is polluting the Marine Park in a manner harmful to animals and plants in the Marine Park, the Authority may require the operator of the facility, by notice in writing, to give reasons why the Authority should not direct the operator to cease discharging aquaculture waste from the facility.
(3) The notice must specify a reasonable time within which the operator must tell the Authority the reasons.
(4) If, after considering any reasons put forward by the operator of the facility, the Authority considers that the operator of the facility should not be allowed to continue to discharge aquaculture waste from it, the Authority may give the operator a notice that the operator is not to discharge aquaculture waste from the facility:
(a) if the notice specifies a day (no more than 7 days after the notice is served on the operator) for the purpose — after that day; or
(b) after the day the notice is served on the operator.
Note A decision to give a notice under subr (4) is a notifiable decision. For reconsideration and review of notifiable decisions, see Pt 6.
(5) The notice must:
(a) set out the reasons for the Authority’s decision; and
(b) state that a person whose interests are affected by the decision may ask the Authority to reconsider the decision; and
(c) state that a person who has asked for the reconsideration may apply, under the Administrative Appeals Tribunal
Act 1975, to the AAT for review of the decision after the reconsideration.
(6) The Authority’s failure to comply with paragraph (5) (a), (b)
or (c) about a decision does not make the decision invalid.
18 Interim exemptions
(1) If the Authority grants an interim exemption under this regulation in relation to an aquaculture facility, regulation 9 is not taken to prohibit the discharge of aquaculture waste from the facility while the interim exemption has effect.
(2) The Authority may grant such an exemption if a person applies in writing setting out:
(a) the name and address of the applicant, or each applicant; and
(b) where the facility is or will be (including the lot and registered plan numbers of the land on which it is or will be built, and the parish and county in which it is or will be located); and
(c) the period for which the exemption is sought; and
(d) the expected volume and composition of aquaculture waste expected to be discharged from the facility during that period.
(3) The application may have been made before this regulation commences.
(4) An interim exemption ceases to have effect 4 months after this regulation commences, or an earlier time stated in it for that purpose.
(5) The Authority must not grant an interim exemption after the beginning of the day that is 4 months after this regulation commences.
Part 4 Permissions
Division 4.1 Application
19 How to apply for a permission
An application for a permission to discharge aquaculture waste must be:
(a) in writing; and
(b) in a form approved by the Authority for the purpose.
20 Application in more than 1 name
(1) If 2 or more persons apply together for a permission and 1 of the persons dies, or decides not to continue with the application, the application is taken to have been made by the remaining applicant or applicants on the day when the application was made.
(2) Subregulation (3) applies if:
(a) a person (the first person) applies for a permission; and
(b) someone else wishes to join in the application; and
(c) the first person agrees.
(3) The application is taken to have been made by both or all of the applicants on the day when the application was made by the first person.
21 Information to be included in applications
An application for a permission must include the following information and details:
(a) the name and address of the applicant, or each applicant;
(b) that the facility is operating, or when it is expected to begin to operate;
(c) if the application is because an operating aquaculture facility proposes to increase the volume of aquaculture waste it discharges, or to alter the nature or composition of the aquaculture waste it discharges in a significant way (that is, a way that makes the waste significantly more likely to pollute water in a way harmful to animals or plants in the Marine Park, or that makes the waste significantly more harmful to such animals or plants) — when the facility expects to begin discharging the greater volume of aquaculture waste, or discharging aquaculture waste of the new composition;
(d) where the facility is or will be (including the lot and registered plan numbers of the land on which it is or will be built, and the parish and county in which it is or will be located);
(e) the kind of aquaculture that is being carried on, or will be carried on, at the facility;
(f) what kind of animal is or will be raised at the facility, and how many there are, or are likely to be, at a time;
(g) what chemicals, foods, and hormones and other materials are or are expected to be put into the water in the facility, and the approximate amount or concentration of each;
(h) a description of the receiving environment;
(i) the expected volume and composition of aquaculture waste expected to be discharged from the facility during a specified period;
(j) any safeguards proposed to prevent or mitigate the effect of the discharge of aquaculture waste from the facility on the environment of the Marine Park;
(k) how the effect of that discharge on the environment of the Marine Park will be monitored;
(l) how the waste is to be disposed of;
(m) the predicted effects on the environment of the Marine Park as a result of that discharge, including information about whether and to what extent that discharge is likely to pollute water in a manner harmful to animals and plants in the Marine Park;
(n) the name of any shoal, reef or island on or near the facility site or proposed site;
(o) the period for which the permission is sought;
(p) the means of transport for entering, carrying on operations at and leaving the facility site or proposed site;
(q) any other relevant information that:
(i) the Authority reasonably needs; and
(ii) the Authority asks the applicant to give it.
22 Advertising applications
(1) Subject to subregulation (5), an applicant or the applicants for a permission must publish a notice about the application in accordance with subregulation (2).
(2) The notice must:
(a) set out the information about the application that the Authority directs the applicant to include in the notice; and
(b) invite people to give the Authority written comments about the application; and
(c) state the day by which those comments must be given to the Authority; and
(d) give an address of the Authority to which those comments should be sent.
(3) For paragraph (2) (c):
(a) the day by which comments must be made must be at least 30 days after the last day on which the notice is published; and
(b) the Authority must not treat a comment that it receives on that day as having been made on that day if the Authority receives it after 5 pm.
(4) The notice must be published:
(a) in the Gazette; and
(b) in a newspaper circulating generally in Queensland; and
(c) if there is a local newspaper that circulates in the place in Queensland that is nearest to the facility site or proposed site — in that newspaper.
(5) This regulation does not apply if:
(a) the Authority designates a person as proponent, under the procedures approved under section 6 of the Environment Protection (Impact of Proposals) Act 1974, in relation to the activity for which the permission is sought; or
(b) the Authority refers a proposal to grant the permission sought to the Minister under section 161 of the Environment Protection and Biodiversity Conservation Act 1999.
23 More information about applications
(1) If the Authority reasonably needs more information to enable it to consider an application properly, the Authority may give the applicant a notice asking for the information.
(2) The notice:
(a) must describe the information needed; and
(b) must tell the applicant that the application will lapse if
the information is not given to the Authority within 60 days or any further time allowed by the Authority under paragraph (3) (b).
(3) The information must be given to the Authority in writing:
(a) within 60 days after the date of the notice; or
(b) if the applicant asks the Authority, before the end of the 60 days, for an extension of time and the Authority extends the time — before the end of the extended period.
(4) If the applicant does not comply with subregulation (3), the application lapses.
Division 4.2 Consideration of applications
24 What Authority must take into account
In considering an application for a permission, the Authority must take into account:
(a) the objects of the Act; and
(b) Australia’s obligations under the international conventions mentioned in paragraph 4 (a); and
(c) whether, and to what extent, the proposed discharge of aquaculture waste is likely to pollute the water in a manner harmful to animals and plants in the Marine Park; and
(d) the arrangements for rectifying any pollution of that kind; and
(e) any comments made by the public in relation to those matters.
25 Assessment of effect of operations on water
Before giving a permission to an applicant, the Authority must assess whether and to what extent the proposed discharge of aquaculture waste is likely to pollute the water in a manner harmful to animals and plants in the Marine Park.
Division 4.3 Decisions on applications
26 Authority to make decisions on applications
(1) Subregulation (2) applies if a person:
(a) applies for a permission; and
(b) publishes the notices mentioned in regulation 22 in accordance with that regulation; and
(c) gives the Authority any additional information that the Authority has asked for.
(2) The Authority:
(a) must, within a reasonable time, make a decision on the application; and
(b) if it grants permission — may impose on the permission a condition or conditions necessary or convenient for:
(i) protecting animals and plants in the Marine Park from pollution caused by the proposed discharge; or
(ii) repairing or mitigating any damage caused or that might be caused by pollution of that kind.
(3) Without limiting subparagraphs (2) (b) (i) and (ii), a condition:
(a) may specify the nature, volume or composition of the waste that may be discharged; or
(b) may require the permission holder to give security by bond, guarantee or cash deposit:
(i) to comply with these Regulations; or
(ii) not to contravene another condition of the permission; or
(iii) to meet any liability to the Commonwealth for measures taken by the Commonwealth to repair or mitigate damage caused by a contravention of the permission or these Regulations in relation to the discharge; or
(c) may require the permission holder to comply with conditions specified in an instrument (including any kind of authorisation) made or granted under a law of Queensland or another law of the Commonwealth; or
(d) may require an environmental audit of the action to be carried out periodically by a person who can be regarded as being independent from the permission holder; or
(e) may require the permission holder to prepare, submit for approval by the Minister, and implement, a plan for managing the impacts of the discharge on animals and plants in the Marine Park; or
(f) may require the permission holder to carry out specified environmental monitoring or testing; or
(g) may require the permission holder to comply with a specified industry standard or code of practice.
(4) The permission must specify an aquaculture facility or proposed aquaculture facility for the purposes of which the permission is granted.
(5) If the Authority gives an applicant a permission to discharge less aquaculture waste than was proposed in the applicant’s application, the Authority is taken to have refused permission to discharge the remainder of the amount of waste of that kind proposed in the application.
27 Notice of decision
(1) The Authority must give an applicant for a permission written notice of its decision about the applicant’s application.
Note A decision on an application for a permission is a notifiable decision. For reconsideration and review of notifiable decisions, see Pt 6.
(2) The notice must:
(a) if the decision is anything other than an unconditional grant of the permission — set out the reasons for the decision; and
(b) state that a person whose interests are affected by the decision may ask the Authority to reconsider the decision; and
(c) state that a person who has asked for the reconsideration may apply, under the Administrative Appeals Tribunal
Act 1975, to the AAT for review of the decision after the reconsideration.
(3) The Authority’s failure to comply with paragraph (2) (a), (b)
or (c) about a decision does not make the decision invalid.
Division 4.4 Transfer of permissions
28 Permission not transferable except under this Division
(1) A purported transfer of a permission otherwise than under this Division is of no effect.
(2) A purported transfer of a permission is of no effect until this Division has been complied with in relation to the transfer.
(3) A purported disposal of an interest in a permission by way of declaration of trust is of no effect.
(4) Any other purported disposal of an equitable interest in a permission independently of the legal interest in the permission is of no effect.
29 How to apply for transfer of permissions
(1) The holder of a permission may transfer his or her interest in the permission to another person if:
(a) the permission is not a permission that is suspended under these Regulations or one to which regulation 36 applies; and
(b) the Authority approves the transfer.
(2) An application must be:
(a) in a form approved by the Authority; and
(b) signed by the proposed transferor and the proposed transferee; and
(c) lodged with the Authority at least 28 days before the day on which transfer is intended to occur.
30 More information about applications
(1) If the Authority reasonably needs more information to enable it to consider an application properly, the Authority may give the proposed transferee a notice asking for the information.
(2) The notice:
(a) must describe the information needed; and
(b) must state that the application will lapse if the information is not given to the Authority within 60 days or any further time allowed by the Authority under paragraph (3) (b).
(3) The information must be given to the Authority in writing:
(a) within 60 days after the date of the notice; or
(b) if the proposed transferee asks the Authority for an extension of time before the end of the 60 days and the Authority extends the time within which the proposed transferee must give the information — before the end of the extended period.
(4) If the proposed transferee does not comply with
subregulation (3), the application lapses.
31 Consideration of application for transfer
(1) In considering an application, the Authority must take into account:
(a) if the application relates to an undeveloped project — the capacity of the proposed transferee to develop the project properly; and
(b) whether the transferee is likely to manage the discharge of aquaculture waste under the permission in a way that minimises pollution of water in a manner harmful to animals and plants in the Marine Park.
(2) The Authority must decide the application within:
(a) 28 days of receiving the application; or
(b) if the Authority asks for more information under regulation 30, and the time for consideration is extended under paragraph 30 (3) (b) — 28 days after the end of the time as so extended.
32 Approval of application for transfer
The Authority may:
(a) approve the proposed transfer; or
(b) with the written consent of the proposed transferee — approve the proposed transfer but vary the conditions to which it is subject; or
(c) refuse the application.
33 Notice of decision
(1) The Authority must give the applicant for transfer of a permission written notice of its decision about the applicant’s application.
Note A decision on an application for transfer of a permission is a notifiable decision. For reconsideration and review of notifiable decisions, see Pt 6.
(2) The notice must:
(a) if the decision is anything other than an unconditional approval to transfer the permission — set out the reasons for the decision; and
(b) state that a person whose interests are affected by the decision may ask the Authority to reconsider the decision; and
(c) state that a person who has asked for the reconsideration may apply, under the Administrative Appeals Tribunal
Act 1975, to the AAT for review of the decision after the reconsideration.
(3) The Authority’s failure to comply with paragraph (2) (a), (b)
or (c) about a decision does not make the decision invalid.
34 Effect of transfer
(1) After the Authority approves the transfer of a permission, the permission has effect for all purposes as if it had been granted to the transferee.
(2) A permission that is transferred is taken, for the purposes of the Act, to be a grant of permission that begins to take effect on the day of transfer.
(3) To avoid doubt, a permission that is transferred is taken, for these Regulations, to cease to be in force when it would have ceased to be in force if it had not been transferred.
Division 4.5 Expiry, amendment, suspension and cancellation of permissions
Subdivision 4.5.1 Period permissions remain in force
35 How long permissions remain in force
A permission remains in force until:
(a) the permission lapses; or
(b) the end of the period stated in it (the end date); or
(c) if the permission is surrendered or cancelled before the end date — the day when it is surrendered or cancelled.
36 Permissions taken to remain in force if renewal applied for
(1) This regulation applies to a permission (the first permission) if, before it ceases to be in force, the permission holder applies to the Authority (whether or not another person joins in the application) for a second permission to discharge waste from the aquaculture facility concerned, and:
(a) the application has not been withdrawn; and
(b) the application has not lapsed; and
(c) the Authority has not given the holder written notice giving or refusing the second permission.
(2) If the Authority gives the applicant the second permission, the first permission is taken to remain in force until the second permission comes into force.
(3) However, if the first permission is surrendered or cancelled before the time when, but for this subregulation, it would cease to be in force, that permission ceases to be in force when it is surrendered or cancelled.
Subdivision 4.5.2 Amendment and suspension of permissions
37 Amendment of permission with permission holder’s consent
If the Authority gives a permission subject to a condition, the Authority may amend the condition at any time, with the written consent of the permission holder, to ensure that the condition remains appropriate to achieving the objects of the Act.
38 Suspension or amendment of permission if unforeseen danger to Marine Park
(1) Subregulation (2) applies if:
(a) a person holds a permission; and
(b) because of circumstances that were not foreseen and were not reasonably foreseeable (unforeseen circumstances) when the permission was given:
(i) water has been polluted in a manner harmful to animals and plants in the Marine Park; or
(ii) it appears likely that water will be polluted in that manner.
(2) The Authority may:
(a) suspend the permission; or
(b) amend any condition of the permission to make the condition more restrictive; or
(c) impose a condition, or an additional condition, on the permission.
(3) If the Authority suspends the permission, amends a condition of the permission, or imposes a condition on the permission because of the unforeseen circumstances, it must investigate the unforeseen circumstances as soon as practicable.
(4) As soon as practicable after investigating the unforeseen circumstances, if the Authority does not find any reasonable grounds for the action taken, the Authority must:
(a) cancel the suspension or amendment of the condition; or
(b) withdraw the condition.
39 Suspension or amendment of permission for breach of condition
(1) If the holder of a permission is not complying with a condition of the permission, or there is reason to believe that a breach of such a condition is about to happen, the Authority may:
(a) suspend the permission; or
(b) amend any condition on the permission to make the condition more restrictive; or
(c) impose a condition, or an additional condition, on the permission.
(2) If the Authority suspends the permission, amends a condition of the permission, or imposes a condition on the permission, as soon as practicable after taking that action it must investigate the circumstances leading to:
(a) the permission being suspended; or
(b) the condition being amended or imposed.
(3) As soon as practicable after investigating those circumstances, if the Authority does not find any reasonable grounds for the action taken, it must:
(a) cancel the suspension or amendment; or
(b) withdraw the condition.
(4) If the authority suspends a permission because the permission holder did not comply with a condition of the permission, or there were reasonable grounds to believe that such a breach was about to happen, but the Authority becomes satisfied that the permission holder is complying or will comply with the condition, the Authority must cancel the suspension.
40 Effect of suspension
A permission that is suspended does not authorise the discharge of aquaculture waste while it is suspended.
41 Notice of suspension or amendment to permission holder
(1) If the Authority suspends a permission, amends a condition of a permission under regulation 38 or 39, or imposes a condition on a permission, it must give the permission holder written notice that it has done so as soon as practicable.
Note A decision to suspend a permission, amend a condition of a permission or impose a condition on a permission is a notifiable decision. For reconsideration and review of notifiable decisions, see Pt 6.
(2) The notice must:
(a) give the reasons for the decision; and
(b) if the Authority has amended a condition of a permission, or imposed a condition on a permission — state that:
(i) a person whose interests are affected by the decision may ask the Authority to reconsider the decision; and
(ii) a person who has asked for the reconsideration may apply, under the Administrative Appeals Tribunal
Act 1975, to the AAT for review of the decision after the reconsideration.
(3) The Authority’s failure to comply with paragraph (2) (a) or (b) about a decision does not make the decision invalid.
Subdivision 4.5.3 Cancellation of permissions
42 Cancellation of permissions for breach of condition
The Authority may cancel a permission if the Authority takes action under paragraph 39 (1) (b) or (c) about the permission because the permission holder is not complying with a condition of the permission, or there is reason to believe that a breach of such a condition is about to happen, and:
(a) if the Authority’s action was to amend the condition — the permission holder is failing, or has failed, to comply with the condition as amended; or
(b) if the Authority’s action was to impose a condition — the permission holder is failing, or has failed, to comply with the condition imposed.
43 Cancellation of permissions if danger to Marine Park
(1) The Authority may cancel a permission if:
(a) a person does something authorised by the permission; and
(b) because of circumstances that were not foreseen and were not reasonably foreseeable (unforeseen circumstances) when the permission was given:
(i) water has been polluted in a manner harmful to animals and plants in the Marine Park; or
(ii) it appears likely that water will be polluted in that manner.
(2) The Authority may take action under subregulation (1) whether or not the Authority has taken action, in respect of the pollution or likely pollution, against the permission holder under regulation 38.
44 Notice of cancellation
(1) If the Authority cancels a permission, it must give the permission holder written notice that it has done so as soon as practicable.
Note A decision to cancel a permission is a notifiable decision. For reconsideration and review of notifiable decisions, see Pt 6.
(2) The notice of the decision must:
(a) set out the reasons for the decision; and
(b) state that a person whose interests are affected by the decision may ask the Authority to reconsider the decision; and
(c) state that a person who has asked for the reconsideration may apply, under the Administrative Appeals Tribunal
Act 1975, to the AAT for review of the decision after the reconsideration.
(3) The Authority’s failure to comply with paragraph (2) (a), (b)
or (c) about a decision does not make the decision invalid.
45 Conviction of offence after expiry or cancellation of permission
(1) Subregulation (3) applies to a person who is the holder of a permission, if the person does not comply with a condition of the permission.
(2) Subregulation (3) also applies to a person who was the holder of a permission, if the person did not comply with a condition of the permission before the permission was cancelled or otherwise ceased to be in force.
(3) These Regulations do not prevent the person being convicted of an offence because of the person’s failure to comply with the condition.
46 When permissions lapse
(1) The Authority may cancel a permission if its holder does not begin to carry on the permitted operations within 1 year after the day when the permission was given to the permission holder.
(2) The Authority may grant an extension of the time allowed by subregulation (1), and if the Authority grants such an extension, that subregulation has effect as if the time as so extended were specified in that subregulation.
Part 5 Fees: applications for permissions
47 Fees for assessment in respect of application for permission
(1) A fee is payable to the Authority for an assessment under regulation 25 in respect of an application for a permission to discharge aquaculture waste.
(2) The amount of the fee is the amount worked out in accordance with regulations 68 and 69 of the Great Barrier Reef Marine Park Regulations 1983, and item 2 (b) of Schedule 7 to those Regulations, as if those regulations and that item applied to the application.
(3) That item has effect for subregulation (2) as if ‘regulation 22’ were substituted in it for ‘regulation 11, 20 or 43’.
48 Waiver of fees
(1) The Authority may waive payment of a fee that, but for this regulation, would be imposed for an application.
(2) In deciding whether to waive payment of a fee, the Authority may take into account whether an adequate environmental assessment in relation to the proposed discharge of aquaculture waste has been conducted under an accredited Queensland law.
(3) Subregulation (2) does not prevent the Authority taking into account any other relevant matter.
49 Notices of fees payable
(1) As soon as practicable after receiving an application from a person for a permission, the Authority must give the person a notice:
(a) setting out the amount of the fee for the relevant assessment, or stating that no fee is payable; and
(b) if a fee is payable — setting out the date on which the notice is given, and requiring the person to pay the amount of that fee within 21 days after that date.
(2) If an application is withdrawn before the end of the 21 days referred to in paragraph (1) (b):
(a) a fee is not taken to be payable for the assessment; and
(b) the amount of any fee paid is to be refunded.
(3) Subject to subregulation (2), an amount paid for an application is not to be refunded if the application is withdrawn, or otherwise ceases to have effect, after the amount is paid.
50 Lapsing of applications
An application lapses if the amount of any fee payable in respect of it is not paid within the 21 days referred to in paragraph 49 (1) (b).
Part 6 Notification, reconsideration and review of decisions
51 Definition of notifiable decision for Part 6
In this Part:
notifiable decision means a decision by the Authority:
(a) that an aquaculture operation should no longer be treated as a concessional aquaculture operation (within the meaning given by subregulation 15 (1)); or
(b) under subregulation 15 (4) or 17 (4) — to direct the operation of an aquaculture facility to cease discharging aquaculture waste from the facility; or
(c) on an application for a permission; or
(d) to cancel a permission; or
(e) to amend a condition or impose a condition on a permission without the consent of the permission holder; or
(f) to refuse to approve a transfer of a permission, or to impose a condition or additional condition on the transfer of a permission; or
(g) to amend a permission by imposing a limitation on it.
52 Notice of notifiable decisions
(1) As soon as practicable after making a notifiable decision, the Authority must publish a notice of the decision in the Gazette.
(2) The Authority’s failure to comply with subregulation (1) about a decision does not make the decision invalid.
53 Contents of a notice
(1) A notice published under subregulation 52 (1) about a notifiable decision must state that a person whose interests are affected by the decision may:
(a) obtain from the Authority a statement of reasons for the decision; and
(b) ask the Authority to reconsider the decision.
(2) The notice must also state that a person who has asked for the reconsideration may apply, under the Administrative Appeals Tribunal Act 1975, to the AAT for review of the decision after the reconsideration.
(3) The Authority’s failure to comply with subregulation (1) or (2) about a decision does not make the decision invalid.
54 Requests for reconsideration of decisions
(1) In subregulation (2):
notifiable decision does not include a decision under subregulation 55 (3).
(2) A person whose interests are affected by a notifiable decision may ask the Authority to reconsider the decision.
(3) A request for reconsideration must:
(a) be in writing; and
(b) set out the reasons why the Authority should reconsider the decision; and
(c) be given to the Authority within 21 days after the day when notice of the decision is published in the Gazette.
55 Reconsideration of decisions
(1) In this regulation:
notifiable decision does not include a decision under subregulation (3).
(2) Within 40 days after a person asks for reconsideration of a notifiable decision (the original decision), the Authority must reconsider the decision.
(3) After reconsidering a decision, the Authority must:
(a) confirm the original decision; or
(b) amend it; or
(c) substitute another decision for it.
(4) The Authority must give written notice of its decision after reconsideration to the person who applied for the reconsideration.
(5) If the original decision was a notifiable decision, the Authority must also publish in the Gazette a notice of its decision on the reconsideration.
(6) If the Authority decides to amend the original decision or substitute another decision for it, the later decision replaces the original decision for all purposes.
56 Implementation of decision being reconsidered
The making of an application for reconsideration of a decision does not affect the operation of the decision, or prevent the Authority taking action to implement the decision.
57 AAT review of decisions on reconsideration
Within 21 days after the publication of the notice in the Gazette of the Authority’s decision on reconsideration of a notifiable decision, a person may apply under the Administrative Appeals Tribunal Act 1975 to the AAT for review of the decision on the reconsideration.
Part 7 Enforcement
58 Definition of premises for Part 7
In this Part:
premises includes:
(a) a structure or building; and
(b) land or a place (whether enclosed or built upon or not); and
(c) a vessel; and
(d) a vehicle; and
(e) an aircraft; and
(f) a part of premises (including premises of a kind referred to in paragraph (a), (b), (c), (d) or (e)).
59 Powers of inspector in relation to premises
(1) With the consent of the occupier of premises, an inspector may enter the premises to find out whether:
(a) an aquaculture operation for which a permission is required is being carried on on the premises; or
(b) aquaculture waste is being discharged from the premises in contravention of these Regulations; or
(c) a permission is being complied with; or
(d) there is on the premises evidence about whether:
(i) an aquaculture operation for which a permission is required is being carried on on the premises, or other premises; or
(ii) aquaculture waste is being discharged from the premises, or other premises, in contravention of these Regulations; or
(iii) a permission is being complied with.
(2) An inspector may enter premises, in accordance with a warrant issued under regulation 60, for a purpose mentioned in paragraph (1) (a), (b), (c) or (d).
(3) If an inspector enters premises under subregulation (1) or (2), the inspector:
(a) may:
(i) search the premises for; and
(ii) inspect; and
(iii) take extracts from; and
(iv) make copies of;
any documents or records that are relevant to a matter mentioned in paragraph (1) (a), (b), (c) or (d); and
(b) may take:
(i) samples of water, organic or inorganic materials or chemicals; or
(ii) photographs or other images; or
(iii) recordings or measurements.
Note 1 Document and record include information stored on a computer: see the Acts Interpretation Act 1901, s 25.
Note 2 Part VI of the Act contains provisions about the appointment and powers of inspectors.
60 Warrant to enter premises
(1) If a magistrate, on application by an inspector, is satisfied, by information on oath, that there are reasonable grounds for suspecting that there are on premises documents that are relevant to a matter mentioned in paragraph 59 (1) (a), (b), (c) or (d), the magistrate may issue a warrant authorising the inspector to enter the premises:
(a) with such assistance, and by such force, as is necessary and reasonable; and
(b) during the hours that the warrant specifies, or, if the warrant so specifies, at any time.
(2) A warrant must:
(a) specify the purpose for which the warrant is issued; and
(b) specify the powers exercisable under subregulation 59 (3) by the inspector to whom the warrant is issued; and
(c) describe the kind of documents to which the warrant relates; and
(d) specify the day (not more than 14 days after the issue of the warrant) on which the warrant ceases to have effect; and
(e) state that an inspector executing it is authorised to secure, and apply to a magistrate for a warrant authorising the seizure of, anything found that:
(i) may afford evidence of the commission of an offence against the Act, these Regulations or any other regulations under the Act; and
(ii) the inspector reasonably believes likely to be lost, destroyed or tampered with if it is not secured.
(3) If an inspector, or a person assisting an inspector, who is on premises under the authority of a warrant issued under subregulation (1) finds anything that may afford evidence of an offence against these Regulations, the Act or any other regulations under the Act, the inspector may secure the thing pending the obtaining of a warrant under regulation 61.
(4) An inspector may not secure a thing under subregulation (3) for longer than 2 days.
(5) The occupier of premises entered by an inspector under the authority of a warrant issued under subregulation (1) must provide the inspector with all reasonable facilities and assistance for the effective exercise of powers under the warrant.
Penalty for contravention of subregulation (5): 30 penalty units.
61 Seizure of evidentiary material
(1) If an inspector has, under subregulation 60 (3), secured anything that may afford evidence of an offence against the Act, these Regulations or any other regulations under the Act, the inspector may apply to a magistrate for a warrant authorising an inspector to enter the premises:
(a) with such assistance, and by such force, as is necessary and reasonable; and
(b) during the hours that the warrant specifies, or, if the warrant so specifies, at any time; and
(c) seize the thing.
(2) The application must describe the offence of which the thing will afford evidence, and must be supported by oath by the inspector.
(3) The magistrate may issue the warrant if he or she is satisfied on reasonable grounds that the thing:
(a) may afford evidence of an offence against the Act, these Regulations or any other regulations under the Act; and
(b) is likely to be lost, destroyed or tampered with if it is not seized.
(4) The warrant must:
(a) state that the magistrate who issues it is satisfied by information on oath that the things mentioned in it may afford evidence of an offence against the Act, these Regulations or any other regulations under the Act; and
(b) state that the magistrate is satisfied by information on oath that the things named in it are likely to be lost, destroyed or tampered with if not seized; and
(c) give the name of the inspector who may execute it, or say that it may be executed by any inspector; and
(d) specify the things or the kind of things that may be seized; and
(e) specify the time (no longer than 7 days after its issue) at which it ceases to have effect.
(5) An inspector may retain a thing seized under the authority of the warrant:
(a) until the end of 60 days after the seizure; or
(b) if a prosecution is brought within that period for a relevant offence — until the prosecution is terminated.
(6) In paragraph (5) (b):
relevant offence means an offence against the Act, these Regulations or any other regulations under the Act:
(a) in the commission of which the thing may have been used or otherwise been involved; or
(b) about which the thing may afford evidence.
(7) For this regulation, a thing affords evidence of an offence if it assists (directly or indirectly) in:
(a) determining whether an offence against the Act, these Regulations or any other regulations under the Act has been committed; or
(b) establishing the details of such an offence, the circumstances in which it was committed, the identity of the person or persons who committed it, or any other information relevant to the investigation of those matters.
Part 8 Miscellaneous
62 Constitutional safety‑net — acquisition of property
(1) If the operation of these Regulations or the doing of any act by the Minister or the Authority in pursuance of these Regulations results in the acquisition of property from a person, being
an acquisition of property within the meaning of paragraph 51 (xxxi) of the Constitution, the Commonwealth is liable to pay to that person such compensation as is determined by agreement between the Commonwealth and that person or, in the absence of agreement, by action brought by that person against the Commonwealth.
(2) In determining the compensation payable to a person by the Commonwealth under this section in respect of the acquisition of property from the person, regard must be had to any amount of compensation paid or payable to the person in respect of the acquisition by a person other than the Commonwealth.