The Limits of the Great Barrier Reef Marine Park: Defining Bays and Redefining Regulatory Control
| Author | Brad Jessup,Donald R Rothwell |
| Published date | 01 March 2009 |
| Date | 01 March 2009 |
| DOI | 10.22145/flr.37.1.3 |
| Subject Matter | Article |
THE LIMITS OF THE GREAT BARRIER REEF MARINE PARK:
DEFINING BAYS AND REDEFINING REGULATORY
CONTROL
Donald R Rothwell and Brad Jessup*
INTRODUCTION
The Great Barrier Reef is a vast area of enormous biological, including human,
importance. In recent years the significance of the Great Barrier Reef has been growing
because of the increased interest in global climate change and the role of the reef as a
potential predictor of the impact of climate change, especially upon the marine
environment. The Great Barrier Reef has also legally been important because of its
status as a marine park and World Heritage site. To that end, the Great Barrier Reef has
specifically been regulated by the Great Barrier Reef Marine Park Authority
('GBRMPA') in accordance with the Great Barrier Reef Marine Park Act 1975 (Cth). Those
parts of the reef within the Great Barrier Reef Marine Park ('Marine Park') have
particular protections under the Act and activities within those parts ordinarily require
permission from GBRMPA. Activities authorised by GBRMPA are exempt from the
environmental assessment provisions of the Environment Protection and Biodiversity
Conservation Act 1999 (Cth) ('EPBC Act'), the Commonwealth's principal environmental
legislation.1 The interweave of these statutes has not only created additional layers of
environmental law for the management of the Great Barrier Reef, but also brought into
relief some important foundational issues as to the status of the Great Barrier Reef and
the constitutional extent of Commonwealth and Queensland law which applies to not
only the reef itself but also to the islands and waters which fall within the Marine Park.
The two 2007 cases of Connolly and Great Barrier Reef Marine Park Authority and Far
North Queensland Airwork Pty Ltd before the Administrative Appeals Tribunal ('AAT')
have highlighted these issues in unexpected ways. These cases began under a
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* Professor Donald R Rothwell, Professor of International Law, ANU College of Law,
Australian National University; Brad Jessup, Teaching Fellow, ANU College of Law,
Australian National University.
1 For an analysis of some of the environmental law and policy issues which have arisen with
respect the Great Barrier Reef area see Paul Havemann et al, 'Traditional use of marine
resources agreements and dugong hunting in the Great Barrier Reef World Heritage Area'
(2005) 22 Environmental and Planning Law Journal 258; Peter Wulf, 'Diffuse land-based
pollution and the Great Barrier Reef World Heritage Area: the Commonwealth's
responsibilities and implications for the Queensland sugar industry' (2004) 21
Environmental and Planning Law Journal 424.
72 Federal Law Review Volume 37
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presumption that a seaplane known as the 'Red Baron' based at Horseshoe Bay,
Magnetic Island, in far North Queensland and operating as a business directed
towards the local tourist market in that part of the Great Barrier Reef, required
permission to operate under the Great Barrier Reef Marine Park Act 1975 (Cth). By the
end, however, the AAT had excised Horseshoe Bay from the Marine Park. The AAT's
decision in December 20072 raises significant issues about the geographical extent of
the Marine Park and ultimately the regulatory capacity of GBRMPA and potentially
the environmental protection of high-activity bays in the Great Barrier Reef. The
relatively simple, but nevertheless complex legal issue that confronted the AAT, as to
whether Horseshoe Bay is or is not for the purposes of law a part of the Marine Park,
was dealt with in only seven paragraphs. However, it has considerable legal
significance for the offshore areas of Queensland and raises important issues with
respect to the status of bays within offshore islands under Australian law. Any analysis
of this question requires an appreciation of not only existing Commonwealth law
regulating the Marine Park, but also historical constitutional issues which pre-date
Federation. Additionally, an inadvertent consequence of the AAT's ruling that
Horseshoe Bay was not within the Marine Park and outside the regulatory control of
GBRMPA was the revived operation of the EPBC Act, which was otherwise excluded.
This article focuses on the AAT's finding in its December 2007 decision that
Horseshoe Bay is not part of the Marine Park, and therefore beyond the decision-
making jurisdiction of GBRMPA. It highlights the many facets of the law that were
overlooked by the AAT and that raise doubt about the AAT's finding. It revives the
question of regulatory domain over bays in the Great Barrier Reef World Heritage
Area. The article proceeds by way of an analysis and critique of the AAT's application
of the relevant law and also identifies some of the consequences of the legal outcome of
the Red Baron matter and, more generally, for the regulation and protection of the
Great Barrier Reef World Heritage Area.
THE CONTROVERSY OF THE RED BARON
In April 2005, Far North Queensland Airwork Pty Ltd (Airwork) applied for a permit
from GBRMPA to conduct the Red Baron seaplane business.3 According to the permit
application, the Red Baron would land and take off from Horseshoe Bay, Nelly Bay
and Picnic Bay, which are all bays within Magnetic Island.4 Under sections 32 and 36
of the Great Barrier Reef Marine Park Act 1975 (Cth) and regulation 77 of the supporting
Regulations,5 together with the Great Barrier Reef Marine Park Zoning Plan 2003
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2 Connolly and Great Barrier Reef Marine Park Authority and Far North Queensland Airwork Pty
Ltd (Party Joined) [2007] AATA 2098 (Unreported, Downes P and Kelly M,
18 December 2007) ('Connolly No 2').
3 Airwork also applied to the Queensland Environmental Protection Agency for a permit to
conduct its business in the State marine park that abuts the Marine Park. A permit is
required under the Marine Parks Act 2004 (Qld) and the Marine Parks Regulation 2006 (Qld).
A joint permit was issued simultaneously with the permit from GBRMPA.
4 Connolly and Great Barrier Reef Marine Park Authority and Far North Queensland Airwork Pty
Ltd (Party Joined) [2007] AATA 1883 (Unreported, Downes P and Kelly M, 19 October 2007)
[1] ('Connolly No 1'). An excellent map of Magnetic Island, depicting the various bays and
associated features can be found via Google Maps Australia at
<http://maps.google.com.au/maps?hl=en&tab=wl> at 24 February 2009.
5 Great Barrier Reef Marine Park Regulations 1983 (Cth).
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