George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

There is one thing Senator Urquhart said at the start of her speech that I agree with: this is about an expansion of ministerial power. If you want to understand just how absurd, how lunatic this act is then understand this: this act gives the minister a power to make unlawful any declared fishing activity. The act defines a declared fishing activity as 'an activity that constitutes fishing'. That is the definition. Were this bill to be passed into law the minister could by ministerial fiat make it a criminal offence for any Australian to engage in any fishing activity. That is what the bill says. How extraordinary!

Even more extraordinary is the criteria according to which the minister may make that declaration that would ban any fishing activity by anyone in Australia. Proposed subsection 390SD(3) says:

The Minister must not make an interim declaration unless the Minister—

that is, the minister for the environment—

and the Fisheries Minister agree that:

  (a)   there is uncertainty about the environmental, social or economic impacts of the fishing activity …

Let me make two observations about that. First of all, the word 'uncertainty' has no legal meaning whatsoever. There is no act of this parliament that I can think of which makes a minister's power conditional upon the existence of uncertainty. So the act provides no guidance and no limitation whatsoever on the capacity of the minister for the environment and the fisheries minister to exercise that power. Secondly, the relevant uncertainty must be an uncertainty in the mind of the minister—not an objective uncertainty, if there were such a thing, but merely an agreement by two individual ministers, the minister for the environment and the minister for fisheries, that they were uncertain about something.

I suppose this bill, expressed in this way, is the absolute climax of the Rudd and Gillard Labor governments. The basis of the existence of a ministerial power to make any fishing anywhere in Australia by any Australian a crime is that two Labor Party politicians are uncertain about something. That is the criteria. If the minister does not understand the operation of a particular activity, if the minister cannot understand the science, or if the minister is incompetent, like most ministers in this government have been, then presumably they are uncertain about it, and that is the jurisdictional hook upon which they can then exercise these draconian powers. As I said, I have never seen a more absurd piece of legislation in my entire career. I have never seen a more draconian overreach of power. This legislation says that if two Labor Party politicians do not understand something, that provides them with a jurisdiction to make any fishing activity by any Australian anywhere a crime. That is what the parliament is being asked to agree to.

I wondered what prodigy of legislative draughtsmanship was responsible for this? But we cannot blame the Office of Parliamentary Counsel for this absurd provision because it comes not from them but from Senator Ludwig's press conference yesterday when he said, 'I have a degree of uncertainty'. So because Senator Ludwig is stupid, he can ban fishing anywhere in the country. That is the way this bill works.