Regulation impact statement

Why Government action is necessary

Clear and strong government action is needed to ensure the protection of the Great Barrier Reef from the impacts of capital dredge spoil disposal and to provide certainty for those seeking to dump dredge spoil. The existing regulatory environment does not ensure these outcomes.

GBRMPA’s 2014 Outlook Report concluded that economic growth is projected to continue in Queensland with a large proportion of this growth occurring in and adjacent to the Marine Park. Population in the Great Barrier Reef catchment is also expected to continue to grow at rates well above the national average for the foreseeable future. Both these drivers change land-use patterns in the catchment, including expanding the urban footprint to accommodate an increasing number of residents and increasing demand for infrastructure.

Management tools such as regulations, zoning plans, plans of management, permits and compliance, will allow management agencies to continue to set and refine the environmental standards necessary to achieve the desired goals, outcomes and targets for the Reef’s values. The Government’s actions to protect the Marine Park from the impact of disposing of capital dredge spoil material through the proposed regulation complements these activities.

The Great Barrier Reef Region Strategic Assessment Report and the 2014 Outlook Report both highlighted the high risk posed by disposal of dredge material to the Great Barrier Reef. This assessment acknowledged that any future port expansion would heighten the risk, with both reports noting that “The disposal of dredge material is not continuous; however, the frequency and volume of disposal and re-suspension of dredge material is likely to increase with continued development and expansion of ports in the coming decade”.

Over the period 2000 to 2013, 8,987,553 cubic metres of capital dredge spoil material was dumped within the Marine Park. This proposal addresses one of the challenges highlighted by the 2014 Outlook Report and the Strategic Assessment Report: the disposal and subsequent re-suspension of capital dredge spoil. The 2015 report of an Independent Panel of Experts²⁵, forecast that the implementation of government policies to ban the disposal of capital dredge spoil material in marine environments (the proposal outlined in this RIS in addition to commitments by the Queensland Government in the Reef 2050 Long-Term Sustainability Plan) mean that there will be much less fine sediment in the future (potentially about five to ten percent of the estimated long-term average input from rivers in the comparison).

Desired outcomes of Government action

In light of these assessments of future risk, the desired outcomes from this proposal are:

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  to improve water quality in the Marine Park;
  
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  to increase protection and conservation of the plants and animals of the Marine Park, including protected species; and therefore,
  
• 
  to improve the Great Barrier Reef’s overall World Heritage values; as well as
  
• 
  to give certainty to future project proponents about capital dredge spoil disposal in the Marine Park.
  

The GBRMP Act makes the Australian Government responsible for the protection and conservation of the Marine Park and makes GBRMPA responsible for assisting in meeting Australia’s international responsibilities in relation to the environment and protection of world heritage (especially Australia’s responsibilities under the World Heritage Convention) (Part 1, Section 2A(2c) of the Act).

Additionally, in its management of the Great Barrier Reef World Heritage Area, Australia has specific obligations under Article 4 of the World Heritage Convention:

Each State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the... natural heritage referred to in Articles 1 and 2 and situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain.

In accordance with the Minister for the Environment’s stated intent to ban the disposal of spoil from capital dredging with the Marine Park, the public consultation documentation included a proposal to achieve the desired outcomes (a preferred solution) as well as two other options. Details of the three options are provided below.

Addressing uncertainty

No decision made by GBRMPA, or other decision makers, can be made with complete certainty; there are always factors that will not be able to be completely informed by science or other information, and this is particularly so when looking at complex environmental systems like the Marine Park.

For the purposes of this proposal, the sources of the uncertainty include: (i) improving yet still incomplete science about the long-term and sub-lethal impacts associated with the disposal of capital dredge spoil material; and (ii) that Marine Park decisions on applications to dispose capital dredge spoil material are made on a case-by-case basis after considering a number of mandatory and discretionary factors as set out in the Great Barrier Reef Marine Park Regulations.

A third uncertainty, the nature of the global economy meaning that projects requiring the disposal of capital dredge spoil material, is driven by forces external to GBRMPA’s control cannot be addressed by this proposal yet is considered to the extent possible under each option.

It is unlikely that there will ever be complete knowledge around the impacts associated with the disposal of capital dredge spoil material. Although the uncertainty about impacts has been reducing over time, there are still unknowns that mean that a case-by-case decision making structure could unintentionally result in adverse impacts occurring to the Great Barrier Reef. Given the outlook for the Great Barrier Reef is poor, has worsened over the last five years and is expected to continue to decline²⁶, actions to address all risks, especially the highest risks are required.

Therefore given the complexity of the Reef ecosystem, its global uniqueness, and its status as a World Heritage site, the environmental risks to the Great Barrier Reef of not banning the disposal of capital dredge spoil material are high.

Options to address the problem

Regulation to ban the future disposal of capital dredge spoil material in the Marine Park (preferred solution)

GBRMPA considers that a key action to assist with achieving the desired outcomes is to implement a regulation to ban the dumping of capital dredge spoil material in the Marine Park²⁷. The intention of the proposed regulation is that all future disposals into the Marine Park of capital dredge spoil material be banned from the date the regulation comes into effect (and include permissions that have already been granted for uncontained disposal).

The regulation should provide that

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  there shall be no further disposal of capital dredge spoil material in the Marine Park from the date the regulation comes into effect;
  
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  the Authority must not grant a permission for conduct that includes dumping of capital dredge spoil material in the Marine Park;
  
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  the ban apply to existing permissions where they have not yet expired for conduct that includes uncontained disposal of capital dredge spoil material in the Marine Park;
  
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  the definition of capital dredge spoil material should not include amounts from very small scale dredging programs (less than 15,000 cubic metres), for example, those associated with an approach to a small boat ramp or for reuse of sand for beach nourishment; and
  
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  the definition of dumping should not include the burying of a cable, pipeline or tunnel for the purposes of infrastructure, for example, those for water, telecommunications or electricity.
  

Rationale: The independent assessment of management effectiveness carried out as part of the Strategic Assessment found that Marine Park zoning provided a high level of certainty for some activities (such as extractive use), but does not provide explicit guidance on where many activities not regulated by the Zoning Plan can be carried out. The assessment considered that greater certainty was required to inform where and how ports can operate within and adjacent to the Region.

The proposed regulation would provide the highest level of certainty for achieving the desired outcomes for the Marine Park. It would also provide certainty that the unintended impacts of the disposal of capital dredge spoil material in the Marine Park would not occur; that case-by-case decisions on Marine Park applications for permission to dispose of capital dredge spoil material would no longer be possible and businesses would not spend funds on developing applications and associated documentation to dispose of capital dredge spoil material in the Marine Park.

This option would explicitly prohibit GBRMPA’s ability to grant permission for the disposal of capital dredge spoil material if it was inconsistent with what the regulation allow.

The population of the Great Barrier Reef catchment is expected to increase by 1.6 per cent or higher each year over the next 20 years²⁸. Population growth is likely to increase use of the Marine Park, which in turn is likely to increase demand for coastal infrastructure to access the Reef (for example, boat ramps) in previously undeveloped sections of the coast. Continuing to allow for the disposal of volumes of less than 15,000 cubic metres of capital dredge spoil material equates to a Very Small Dredging Program under the National Assessment Guidelines for Dredging (2009). This volume was chosen given the significantly reduced potential for unintended impacts as a result of disposal in the Marine Park. It also represents the equivalent of the amount of material from a small boat ramp (refer Table 1 for an example, Half Tide boat ramp) and allows for new boat ramps to be installed in the future. The very small volume would also allow small beach nourishment programs to be conducted. The disposal of up to 15,000 cubic metres of capital dredge spoil material still could not occur until after a rigorous environmental assessment under the Marine Park legislation. In addition the material would need to be suitable for sea disposal and a permit under the Sea Dumping Act.

This option reflects the Australian Government’s intention to end the long-established practice of dumping capital dredge spoil material in the Marine Park. The Marine Park encompasses 99 per cent of the Great Barrier Reef World Heritage Area. The remaining one percent is mainly comprised of port areas which are the responsibility of the Queensland Government, which have advised they will address separately. At the time of the proclamation of the Marine Park, these areas were excluded from the Marine Park area in recognition that ports were already operating in these areas. It is most appropriate to regulate the ban on disposal of capital dredge spoil material in the Marine Park through Commonwealth legislation under the Great Barrier Reef Marine Park Act 1975.

The Reef 2050 Long-Term Sustainability Plan sets out the Queensland Government’s intention to contain development to five existing major ports, four of which are in the Great Barrier Reef Region — Port of Gladstone, ports of Hay Point and Mackay, Port of Abbot Point and Port of Townsville. The limitation on the number of port areas will maximise efficiencies and economic outcomes, while minimising environmental impacts. The Plan also includes the intention to restrict capital dredging for the development of new or expansion of existing port facilities to within the regulated port limits of Gladstone, Hay Point/Mackay, Abbot Point and Townsville.

The proposal partially implements several commitments in GBRMPA’s Great Barrier Reef Region Program Report, which was endorsed by the Minister for the Environment in August 2014²⁹:

Streamlining, harmonising and enhancing regulatory tools

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  Promote a strategic approach to the development and operation of marinas and other access infrastructure along the Great Barrier Reef coast (REC12)
  

Improving certainty

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  Support development of a Queensland ports strategy that concentrates port activity to long-established major port areas in Queensland and encourage port master planning (in line with REC11)
  

This proposal also significantly addresses recommendation R5 from the World Heritage Centre / Internal Union for the Conservation of Nature (IUCN) Monitoring Mission Report³⁰, where there was an expectation that the Strategic Assessment would lead to:

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  Spatial policies that will identify appropriate and limited locations and standards for coastal development, and also identify areas that should not be subject to development, and which will provide greater business certainty regarding development proposals and community confidence and understanding of future development scenarios.
  

This option achieves the Government’s desired outcomes and is likely to have the highest net benefit.

Status Quo (not recommended)

This option would require no action and would maintain the status quo. The status quo is case-by-base assessment of applications proposing to dispose of capital dredge spoil material in the Marine Park based on an incomplete knowledge of the impacts of the disposal of capital dredge spoil disposal and subject to the variations in timing driven by global economic factors.

This option provides a low level of certainty achieving the desired outcomes for the Marine Park. All capital dredge spoil material disposal activities proposed for the Marine Park would continue to require permits and be subject to case-by-case environmental assessments by GBRMPA. This does not provide an effective mechanism to address the cumulative effect of multiple capital projects across the Marine Park.

As highlighted in ‘Existing regulatory arrangements’ above, there are mandatory and discretionary considerations the Authority uses in deciding on an application for permission to use or enter the Marine Park. The delegate has discretion on how to weight the various mandatory and discretionary criteria, but nothing in the existing arrangements could require that a delegate refuse an application to dispose of capital dredge spoil in the Marine Park (unless already banned under the regulations).

This option also does not meet the full intent of the policy which is to ban all future disposal of capital dredge spoil material in the Marine Park. Moreover, dumping of capital dredge spoil material could still occur because there are existing permissions that allow for uncontained disposal in the Marine Park.

Maintaining the status quo is unlikely to meet the expectation of the IUCN or the World Heritage Centre for the protection required for the Marine Park and risks the Great Barrier Reef being listed as a world heritage site ‘in danger’. The consequences of such a listing would include negatively affecting Australia’s reputation as a world leader in managing World Heritage sites and marine protected areas and cause the impression that the Great Barrier Reef is no longer worth visiting and hence a reduction in international tourists holidaying in Australia. The Reef’s Aboriginal and Torres Strait Islanders Traditional Owners, who consider the area as their traditional sea country, would not want to see their heritage values lost as result of ongoing degradation of the central and southern inshore area.

This option does not provide certainty that the unintended or unknown impacts of the disposal of capital dredge spoil material in the Marine Park would not occur given the known gaps in knowledge. Through adaptive management and continuous improvements in monitoring programs required through permit conditions, there is a likelihood of improved knowledge over time. However, the timeframes over which this information would become available are too long, and the risks therefore too great, given the poor outlook for the Great Barrier Reef as identified in the 2014 Outlook Report. Further damage to the Reef may still be possible under this option if it results in disposal of capital dredge spoil in the Marine Park.

This option may result in flow on negative effects to businesses in the vicinity of potential impacts from capital dredge spoil disposal that rely on a healthy and intact ecosystem such as commercial marine tourism, charter and commercial fishing and recreational users as well as the aesthetic heritage values of the Great Barrier Reef. For example, 83 per cent of commercial marine tourism activity in the Great Barrier Reef was focused in about seven per cent of the Region during 2013. In that year, about 40 per cent of the full day visits took place in the Cairns Planning Area (offshore from Cairns and Port Douglas) and 43 per cent of full day visits took place in the Whitsunday Planning Area (the Whitsunday islands and adjacent reefs). Therefore activities that may degrade the quality of water in those areas have the potential to significantly affect tourism-related businesses in those areas.

This option does not provide sufficient certainty about when capital dredge spoil disposal in the Marine Park should be allowed, which was highlighted as a gap in the effectiveness of GBRMPA’s management in the Strategic Assessment Report. Businesses would necessarily spend funds on developing applications and associated documentation to dispose of capital dredge spoil material in the Marine Park without knowing if they are likely to be granted permission. Alternatively, businesses may have trouble accessing suitable finances to cover the costs of a project if there is uncertainty about an approval being granted or if a legal process was to delay or potentially overrule a permit decision. This could have broader economic implications for those businesses and the economies of Queensland and Australia.

This option therefore does not achieve the Government’s desired outcomes.

GBRMPA operational policy (not recommended)

The role of GBRMPA in policy development is confirmed in the Great Barrier Reef Marine Park Act 1975 as set out below:

Section 7 Functions of the Authority

4. 
   The Authority may prepare and publish plans and policies about:
   

1. 
   the way in which the Authority intends to manage the Marine Park or perform its other functions; and …..
   

4. 
   A plan or policy prepared under subsection (4) is not a legislative instrument.
   

This option would update GBRMPA’s existing Dredging and Spoil Disposal Policy (2010) with the stated intent that all future disposals into the Marine Park of capital dredge spoil material should be banned from the date the policy comes into effect.

This option provides a low level of certainty in achieving the desired outcomes for the Marine Park. As highlighted in ‘Existing regulatory arrangements’ above, under there are mandatory and discretionary considerations the Authority uses in deciding on an application for permission in the Marine Park. The delegate has discretion on how to weight the various mandatory and discretionary criteria. Under regulation 88R(d), the Authority may consider any policies or guidelines issued by the Authority about the management of the Marine Park; this is a discretionary consideration. As such, GBRMPA operational policy in relation to dredging and the disposal of capital dredge material is one of many considerations in making a decision on an application. A policy could not require that a delegate refuse an application to dispose of capital dredge spoil in the Marine Park (unless already banned under the regulations).

This option is not able to deliver the full intent of the policy which is to ban all future disposal of capital dredge spoil material in the Marine Park because there are existing permissions that allow for it to occur.

This option does not provide sufficient certainty about when capital dredge spoil disposal in the Marine Park should be allowed, as per the Status Quo option above.

The option allows for the same potential of increasing knowledge about the impacts of the disposal of capital dredge spoil material as the Status Quo option; however the timeliness of new information is not sufficient given the poor outlook for the Great Barrier Reef. Further damage to the Reef due to disposal of capital dredge spoil material would be possible.

This option is unlikely to be considered sufficient by IUCN or the World Heritage Centre for the protection required for the Marine Park or improve business certainty and risks the Great Barrier Reef being listed as a world heritage site ‘in danger’. The flow on effects of this are as described for the Status Quo option.

This option also does not provide the certainty for business either through the case-by-case assessment processes described above nor for sourcing suitable financing to support their projects.

This option therefore also does not achieve the Government’s desired outcomes.