Kerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Primary Industries, Fisheries and Forestry) Share this | Hansard source

Thank you for the opportunity to raise the issue which I was not aware of during the committee hearing. The issue is the strict liability in item 5 and item 7 of schedule 2 of the bill. Quoting from the seventh report of 2007 of the Senate Standing Committee for the Scrutiny of Bills, under the heading of the provision I am referring to:

Proposed new subsection 100B(1A) of the Fisheries Management Act 1991, to be inserted by item 5 of Schedule 2, and proposed new subsection 101AA(1A) of the same Act, to be inserted by item 7 of Schedule 2, apply strict criminal liability to the element of the location of a foreign fishing boat in the Australian Fishing Zone, contained in the offences in sections 100B and 101AA of that Act. The result of these proposed amendments is that, in a prosecution under either of those sections, the prosecution will only have to establish that fishers were in the territorial sea of Australia, not that they intended to be in such waters. The justification for imposing strict liability provided in the explanatory memorandum is that the ‘Commonwealth Director of Public Prosecutions has not been able to prosecute people for these offences because there have been difficulties collecting sufficient evidence to prove that the people intended to be in the territorial sea.’

After receiving a response to that from the minister, the committee said:

The Committee thanks the Minister for this response but remains concerned about the fairness of applying strict liability to the element of the location of a foreign fishing boat in the territorial sea of Australia when ‘the territorial sea is not generally depicted on Australian charts or charts issued under other jurisdictions’, thus making it virtually impossible for a foreign fishing boat to know whether or not it has entered the territorial sea. The Committee, according to its usual practice, leaves it for the Senate as a whole to determine whether these provisions unduly trespass on personal rights and liberties.

It does seem difficult to justify a prosecution where, if this is correct, the territorial sea is not generally depicted on Australian charts or charts issued under other jurisdictions. It is like being caught trespassing on property when you have been sent walking with a blindfold on and have no idea where you are. How would the minister justify the imposition of a penalty on someone who, according to charts, could not know where they were?