Australia Electing Australia’S Marine Protection Legacy

asia-pacific journal of ocean law and policy 4 (2019) 80-85 brill.com/apoc

Australia Electing Australia’s Marine Protection Legacy

Genevieve C. Quirk Australian National Centre for Ocean Resources and Security, University of Wollongong [email protected]

The first day of July 2018 marked a shift in national practice for Australia with an unprecedented change in the level of protection available to the national network of marine protected areas (mpas) from extractive activities.1,2,3 In Australia, marine areas inside the seaward Exclusive Economic Zone (eez) boundary to 3 nautical miles (NM)4 are defined as matters of national sig- nificance5 and their protection is a highly contested national issue that can form part of national election platforms.6 This article examines the political

1 This research has been conducted with the support of the Australian Government Research Training Program Scholarship and the University of Wollongong Global Challenges Program. 2 The relevant revised management plans for the mpas are declared by proclamation under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (epbc Act), Sec- tion 344 (1)(b)(i); Environment Protection and Biodiversity Conservation (Commonwealth Ma- rine Reserves) Proclamation 2013, registered 24 October 2017; and the management plans are approved under the epbc Act section 370, namely the: North Marine Parks Network Manage- ment Plan 2018, Temperate East Marine Parks Network Management Plan 2018, North-west Marine Parks Network Management Plan 2018, South-west Marine Parks Network Manage- ment Plan 2018, Coral Sea Marine Park Management Plan 2018 and came into force July 1, 2018. 3 Attempts by the opposition Labor government to repeal the plans through a disallowance motion under Legislation Act 2003, No. 139, 2003, Section 42 failed on 16, August 2018. 4 epbc Act, art 24. 5 epbc Act Part 3, Division 1, Subdivision F. 6 See eg. Brian Loughnane (authorised by), ‘The direction, values and policy priorities of the next Coalition Government’, Liberal Party of Australia, 2013, p. 29 available at http:// australianpolitics.com/downloads/liberal/13-01-26_our-plan_liberal-party.pdf; Australian Labor Party, A Healthy Environment – election Commitments’ p. 2. available at http:// www.environment.gov.au/system/files/pages/97ece4c8-a3d8-4ee8-87d9-dffd40aae4b6/ files/vol1-election-commitments.pdf; Brian Loughnane (authorised by), ‘Coalition’s Policy

Australia 81

contours of marine protection in Australia and illuminates emerging legal aspects of the obligation to protect and preserve the marine environment to better understand what is at stake in the forthcoming national election7 for Australia’s marine protection legacy. Under Australia’s Environment Protection and Biodiversity Act 1999 (epbc Act), Commonwealth marine reserves may be declared for the land, waters or seabed8 inside the seaward boundary of the eez, between 3nm and 200nm,9 in accordance with the historical constitutional settlement between the Com- monwealth and the States.10 The level of protection within the Commonwealth marine reserves is determined by bioregional plans which assign zones corre- sponding with protection categories as defined by the International Union for Conservation of Nature (iucn).11 Australia’s 2018 revisions to bioregional plans substantially reduced protection from extractive activities in the iucn categories of Sanctuary Zones 1(a) and Marine National Park Zones (II) from 863,753 km2 to 465,088 km2. The plan has increased the areas located in Habitat Pro- tection Zones (IV) by 191,230 km2 which permits fishery exploitation and other activities which do not disturb the seafloor.12 The epbc Act contains no provi- sions to safeguard the previously declared protection standards within mpas.13

for a More Competitive and Sustainable Fisheries Sector’ Liberal Party of Austra- lia, 2013, pp. 4–5 available at http://lpaweb-static.s3.amazonaws.com/13-08-26%20 The%20Coalition%E2%80%99s%20Policy%20for%20a%20More%20Competitive% 20and%20Sustainable%20Fisheries%20Sector%20-%20policy%20document.pdf; Tony Burke, ‘Labor Will Bring Back The Commonwealth Marine Parks’ Australian Labor Party Media Release, 21st August 2018 available at https://www.tonyburke.com.au/media -releases/2018/8/21/media-release-labor-will-bring-back-the-commonwealth-marine -parks. R. Kenchington, ‘The evolution of marine protection and marine protected areas in Australia’, in J. Fitzsimons (ed), Big, Bold and Blue Lessons from Australia’s Marine Protected Areas (CSIRO Publishing, Canberra, 2016) p. 34; J. Fitzsimons, Large‐Scale Ex- pansion of Marine Protected Area Networks: Lessons from Australia, 20(2) Parks (2018) p. 20; R Kenchington & M. Voyer, Marine protected areas in a blue economy—challenges for Oceans Policy, 31(10) Australian Environment Review (2017) p. 344. 7 In accordance with The Constitution an election must be held by May18, 2019; Common- wealth of Australia Constitution Act (The Constitution), Section 13. 8 epbc Act, art 345. 9 epbc Act, art 24. 10 Offshore Constitutional Settlement, Seas and Submerged Lands Act 1973 (Cth). 11 epbc Act, Section 346. 12 Australian Marine Parks Division, ‘Final Assessment Regulation Impact Statement (Second Pass) Management Plans for 44 Marine Parks’ (Department of Environment and Energy, Canberra, 2018) pp. 15–16. 13 By contrast France recently amended their national biodiversity law to include the prin- ciple of non-regression: Loi n° 2016-1087 du 8 août 2016 pour la reconquête de la biodiver- sité, de la nature et des paysages, JO du 9 août 2016, art 2. asia-pacific journal of ocean law and policy 4 (2019) 80-85