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

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Yes, I have seen the report of the Scrutiny of Bills Committee and it expressed concern about the application of strict liability to the territorial sea element of certain foreign fishing offences and the potential to unduly trespass on personal rights and liberties. There are also rights that Australia has to defend its territory and its waters. Without going into a whole treatise in relation to this, there is UNCLOS—the United Nations Convention on the Law of the Sea—which does not allow us to jail people in relation to offences committed from the 200 nautical mile zone all the way through into the 12 nautical mile zone. So these fishermen, by the time they stumble across the 12 nautical mile border, will have penetrated and abused our territorial waters for 188 nautical miles.

We did try the legislation without this strict liability and we came up with advice that said it would be not be possible to allay prosecutions because it would be difficult to prove that they knew about the 12 nautical mile boundary. I have said before that I think there are deficiencies in UNCLOS—the United Nations Convention on the Law of the Sea—but, having said that, we are very serious about protecting our borders. We believe that when you come that close to the Australian shore, undertaking illegal conduct on many occasions having travelled 188 nautical miles, then tough action is required.

The only part of the offence where strict liability will apply is that the persons were in Australian territorial waters. The bill does not alter the other elements of the offence provisions with the overall offence remaining one in which fault must be proven. These amendments complement the Australian government’s strong commitment to border protection. We as a government have engaged with Indonesian authorities and individual fishing communities and conducted education and awareness campaigns about the consequences of fishing illegally in Australian waters. Indonesian fishing communities have been informed about the custodial offence provisions in the Australian waters and have been provided maps in language which clearly states where fishers can fish and the extent of the Australian fishing zone. The strict liability provisions, as they affect illegal foreign incursions, are required to ensure that Australia can prosecute and imprison persons guilty of committing a foreign fishing offence in Australia’s territorial seas.

I hope that this provision never needs to be invoked and I publicly thank the people of Customs, the Navy and the Australian Fisheries Management Authority for the wonderful work they are doing, through border protection, in keeping out illegal foreign fishers. In fact, more and more often we are capturing them near the 200 nautical mile zone rather than close into shore. In fact, I understand there have been no reported cases of illegal fishermen coming onshore in the last 12 months. Those sorts of figures are good, but we still want a robust system in place to protect our fisheries and, more importantly, our biosecurity.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

For the purposes of this inquiry we should not get distracted as to the merits or not of liability provisions. The issue is primarily that some charts apparently do not show the nautical mile boundaries—200 miles and the 12 miles. Through the chair, Minister, I have got absolutely no idea whether the charts do or do not, but it would obviously be an act of fairness for charts to be issued which do show those boundaries. If it is possible, I make a request to the minister to investigate that matter and, if we are able to address that over time, I think we should.

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

The only other matter in the same report was the reference to non-reviewable decisions in schedule 3, item 180. The report says:

… proposed new subsection 26(5) of the Torres Strait Fisheries Act 1984, to be inserted by Item 160 of Schedule 3, would grant the Minister a discretion to cancel or suspend a person’s commercial fishing licence if either of two conditions specified in the proposed subsection is satisfied.

… there does not appear to be any provision for the holder of a licence to seek merits review of the exercise of the Minister’s discretion under the Administrative Tribunals Act 1975.

Is that correct? Is that the intention of the legislation and, if so, why?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

We are conducting a broader review and we hope to have an answer in relation to those matters relatively soon.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Could you answer me as well?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

As I understand it, maps are produced in relation to the Australian economic zone, the 200 nautical mile zone. I understand that most maps do not have the 12-mile territorial sea or the three nautical miles, which is the state jurisdiction. But, without making any promises, I will pass on that suggestion because, if we are in the business of creating maps, it should not be too difficult to seek to incorporate something in the next round.

Bills agreed to.

Bills reported without amendment or request; report adopted.