Robert Ray (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I present the seventh report of 2007 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No. 7 of 2007, dated 20 June 2007.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

In tabling the committee’s seventh report of 2007, I would like to draw the Senate’s attention to provisions in the  Fisheries Legislation Amendment Bill 2007 that may be considered to trespass on personal rights and liberties. I drew these provisions to the attention of the Senate when tabling the committee’s Alert Digest No. 6 of 2007 and would like to comment further following receipt of advice from the Minister for Fisheries, Forestry and Conservation.

Proposed new subsections 100B(1A) and 101AA(1A) of the Fisheries Management Act 1991 apply strict liability to the element of the location of a foreign fishing boat in Australia’s territorial sea. 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 there. The committee sought advice from the minister about the imposition of strict liability in these circumstances and was advised:

The territorial sea is not generally depicted on Australian charts or charts issued under other jurisdictions. Consequently, it is highly unlikely that the person would enter the coordinates for the territorial sea into their technical navigational equipment. For this reason, it has not been possible to successfully prove that someone was intentionally in the territorial sea. The requirement to prove fault for the territorial sea aspect of the offences is therefore undermining the deterrent effect and the offence provisions are not operating as effectively as intended.

While the committee is sympathetic to the need to ensure that the law acts as a deterrent to illegal fishing in Australia’s territorial waters, the committee remains concerned about the fairness of applying strict liability in circumstances where ‘the territorial sea is not generally depicted on Australian charts or charts issued under other jurisdictions’, thus apparently making it virtually impossible for a foreign fishing boat to know whether or not it has entered the territorial sea. The committee considers that these provisions may trespass on personal rights and liberties but leaves it to the Senate as a whole to determine whether they do so unduly.

I would also like to draw the Senate’s attention to a provision in the  Australian Centre for International Agricultural Research Amendment Bill 2007  that may be considered to make rights, liberties or obligations dependent upon insufficiently defined administrative powers, in breach of principle 1(a)(ii) of the committee’s terms of reference. Proposed new section 41 of the Australian Centre for International Agricultural Research Act 1982 would permit the minister to delegate to ‘any person’ all or any of the minister’s functions and powers under the act. The committee has consistently drawn attention to legislation that allows delegations to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. The committee sought the minister’s advice on whether this power of delegation should be limited in some way. In response to the committee’s concerns the minister has sought to justify this very wide delegation to ‘a person’ on the basis that the new section is replacing an existing section of the act which does not limit the power to delegate to a particular class of persons and that it provides the minister with ‘flexibility to ensure that any of his powers are delegated to a person with the requisite skills and experience, which could be a person working within the Australian Centre for International Agricultural Research or elsewhere within the foreign affairs portfolio’.

The committee’s view is that the fact that an existing provision in an act fails to put appropriate limits around the power to delegate does not justify a new provision that has the same failings. Amending an act provides the executive and the parliament with an opportunity to critically review the provisions of that act to ensure that they meet current standards of good practice. Unfortunately this opportunity appears to have been forgone in this instance. The committee has sought the minister’s further advice as to whether the limitations placed on the delegation in his response—that is, that the delegate would be a person working within the centre or elsewhere in the foreign affairs portfolio—could be included in the bill. Pending the minister’s response, I draw senators’ attention to this provision as it may be considered to make rights, liberties and obligations dependent on insufficiently defined administrative powers.

Question agreed to.