LICENSING PROPOSAL FOR COMMUNITY GROUPS
entering parks and other public land

February 2006

The Department of Sustainability and Environment has finally issued the directions paper originally scheduled for July 2005 on the subject of issuing licences for permission to conduct activities on public land. Remember that this has implications for the wider community because of pressures brought upon the Department to apply licence conditions to community groups, eg bushwalking clubs.

It is many months since Adventure Victoria brought the recreation community's attention to the implications of this project and protested on their behalf to Minister Thwaites. The Department implied that we would be able to take comfort in the directions paper when it finally came out.

The directions paper commences with reassuring words from the Minister about; “maintaining the fundamental right of all Victorians to access and use our spectacular parks, forests and reserves for their own personal recreation and enjoyment”, a sentiment that is re-iterated throughout the paper.

But is it a freedom that requires a licence? Yes, if you are involved in an association of some kind, apparently it is. And what are the licence conditions? Start with compliance to the Adventure Activity Standards (AAS). Those people who accepted all those claims about the AAS being a 'voluntary' code might need to think again.

The way clubs and societies get caught is through the definition of “commercial activity” that includes anything involving a membership fee. Almost any exchange of money counts as commercial, so it seems the whole range of clubs, community organisations and tertiary institutions who go into the bush are now “commercial activity” for this purpose. The directions paper proposes that such bodies will require a licence to use public land. Then adherence to the Adventure Activity Standards will be a licence condition. Compliance with licence conditions is required by law. So, in effect, for clubs and societies, the AAS will become LAW.

It is tempting to suppose that this definition is a mistake. The authors of the Adventure Activity Standards, Outdoor Recreation Centre (ORC), have already circulated comment to this effect. But DSE has spent over seven months on this paper, and it is already well aware of the sensitivities, so its words are well considered. In fact, this outcome is exactly one of the ORC's 'key' objectives for the AAS, as AV has confirmed under Freedom of Information.  And it is exactly the policy requested of DSE by the Victorian Tourist Operators Association who chaired the AAS Steering Committee: "Regular users, whether they be commercial tour operators, not-for-profit operators or community groups should be licensed to ensure that they are aware of and are able to meet conditions imposed by the relevant authorities."  And it is worth remembering that both the Steering Committee and Reference Group that DSE have created for this review consist almost entirely of commercial sector representatives.  This is not careless drafting.  Please take it seriously.

And, for anyone that might somehow escape that definition (families and casual acquaintances), there is this: “Where land management objectives can only be protected by restricting access, it may be appropriate to set aside areas where all users require a licence, consistent with the management plan. Under these circumstances, recreational groups may be required to obtain a licence”. Now there may be some circumstances where outright exclusion of all groups makes sense. AV has no objection to land managers protecting sensitive environments, but this paragraph needs a lot of explaining. The DSE paper does not provide it.

Adventure Victoria will make a submission representing what we believe to be the interests of the amateur recreation sector, so we would welcome members' and supporters' views on that. But we also ask you to make your concerns clear to DSE independently. The closing date for responses is 29th March. Alternatively, especially if you have concerns at the composition of the steering committee and the reference group, write direct to the Minister. You should also consider introducing the paper to any association you belong to and making a submission as a body. The DSE directions paper is available here.

June 2005

Adventure Victoria has responded to two alarming publications of the Victorian Department of Sustainability and Environment. They are:
The Nine Point Plan and
Update 1 of the Public Land Tour Operator and Activity Provider Licence Reform Project.

These are public documents; it is just that we had not been aware of them, and almost certainly you weren't either.

What's wrong with them?

Update 1 of the Public Land Tour Operator and Activity Provider Licence Reform Project reveals current plans to apply methods of enforcement of commercial licence requirements to community groups (other than actual licensing). The document we have since found – The Nine Point Plan - reveals that this plan was devised by a project steering group consisting of the Victorian Tourism Operators Association and some government departments. It is clear when you read The Nine Point Plan that the intention from the start was to include community groups in direct licensing requirements. The tone and direction is set when the document refers to clubs, educational and community groups as being “unlicensed” users of public land.

The Nine Point Plan refers repeatedly to the Adventure Activity Standards (AAS) as the source of relevant standards. It was approved by the Minister in January 2004.

Who : The "partners" in the Licensing Reform Project are Sustainability and Environment, Parks Victoria, Tourism Victoria and Victorian Tourism Operators Association (now called Tourism Alliance Victoria). Non-commercial representation: nil. The project has a reference group of commercial interests and just a single community group (Victorian National Parks Association).

Sound familiar? That’s right. The AAS Steering Committee: the same organisations, and again: Non-commercial representation: nil.

Why : Tourism and commercial outdoor recreation interests have expressed dissatisfaction that they should be subject to regulation when people like you are not. This is acknowledged in both The Nine Point Plan and Update 1.

When : The Nine Point Plan was published in May 2004, well into the period that we as an outdoors community were negotiating over the AAS and were being assured that the AAS has no implications for access to public land. At this time, the Victorian Tourism Operators Association was the only non-government partner in the project steering group that devised The Nine Point Plan and also simultaneously held the chair of the AAS Steering Committee.

Things that fall into place:

1) Remember that the ORC, the body that promotes and implements the AAS, doggedly resisted acknowledging that different standards are suited to different classes of people, eg claiming that it is legally impossible to define different standards for recreational groups versus commercial groups. None of this made sense to us at the time. Consider now that to unbundle recreational users from commercial operators in the AAS would have undermined the concurrent push to include recreational users in the licensing review.

2) Remember the trouble we had finding out the specified aims of the funded AAS project. The only thing we could find that hinted at aims in any way was: "Currently most groups other than private commercial operators have access to public land in Victoria without having to abide by any agreed standards relating to the conducting of activities other than those that are individually set by the groups from time to time". Therefore what?

Compare it now to this line from the Nine Point Plan: “Activity standards that apply to licensed operators are not consistently applied to other group activities of a similar nature”.

Given that its chairpersons have been representatives of the commercial sector, the Outdoor Recreation Centre would have been well aware of The Nine Point Plan and the implications for recreational users of public lands, and the links being made to the AAS, since early 2004 when it was written. Yet there is only a fleeting mention in December 2004, AFTER most AAS had been published.

Conclusion:

It is still too early for us to know where this licensing review is going. The alarming wording in The Nine Point Plan and Update 1 is at odds with an assurance we have in writing from DSE (in reply to another issue) that recreation will not be regulated under current policy. But we have made the mistake in the past of dismissing ominous statements as simple errors. (And we must remind you that effective regulation can be achieved without gazetting regulations, eg northern Wilson's Prom and the Alpine National Park throughout 2003.)

However it turns out, a clear pattern has emerged. Commercial operator lobby groups are being allowed to influence public policy at the expense of the broader community. That commercial operators should be permitted to have ANY influence on public or community group access to public lands, or the “standards” they should follow is a clear conflict of interest.

If you have been following the related AAS story, you will recall that we originally referred to the "regulatory capture" effect in 2004. Regulatory capture is a well recognised form of failure in government process. When it occurs, government officers get too close to industry and get 'captured' by industry lobbying, meaning that they forget that their primary responsibility is to the broader community and start administering in the interests of an industry first and foremost. At the time we referred to regulatory capture, we were just pointing out that a process of self-regulation like the AAS will not serve the community satisfactorily. We had no idea then that the AAS was just one part of a process that was indeed being driven by commercial interests. Gradually pieces have fallen into place, and The Nine Point Plan is one of those pieces.

We are not taking issue with the existence of commercial operations in parks and other public lands. And we make all these points with apologies to the many operators who would have no wish to interfere in public access issues.

What next?

We wrote to the Minister for Environment requesting changes to the Licence Reform Project to give it transparency and to give fair community representation on matters that affect the community.

We have received a reply claiming that the Nine Point Plan was not really policy after all, despite being in a department publication, called a "Plan" and carrying the words "approved by the MInister". We are told that another paper, this time a "discussion paper" will appear in August.

This is an important backdown, but we will continue tracking the issue.

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