Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary Assisting the Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

This is a very important piece of legislation because it deals with a truly Australian icon, one of the wonders of the world. It deals with the Great Barrier Reef, the world’s largest and arguably most complex ecosystem—some 2,900 individual reefs, 760 fringing reefs around islands or mainland, and some 900 islands within the marine park. It is managed for multiple uses, including a very important tourism industry which provides the means for 1.9 million visitors from Australia and around the world to experience one of the most spectacular ecosystems on the planet. It is worth nearly $6 billion a year to the regional and Australian economy. The reef supports a diverse fishing industry—important commercial line, net and trawl industries—and is widely used by fishers, including many families, along its more than 3,000 kilometres of coastline. The recreational fishing industry generates some hundreds of millions of dollars of income for communities along the Barrier Reef and for our nation.

As well, the reef has particular cultural significance to Australia’s Indigenous peoples and we have a profound responsibility to manage the environmental, social, cultural and historical contexts of the Great Barrier Reef and also to manage very carefully the evolving pressures as more and more people wish to access the reef. The outcomes of the 2006 review of the Great Barrier Reef Marine Park Act 1975 are aimed at delivering modern legislation for the Great Barrier Reef Marine Park to ensure that we are capable of the long-term protection needs of the future.

This is a bill that evolved during the management of the previous government and it started way back in Dr David Kemp’s time as minister and even before that when Senator Robert Hill was the minister. Certainly the bulk of the work was done by Dr David Kemp and was carried on by Senator Ian Campbell. A lot of work was done by the environment department and Mr Borthwick, its secretary. The review was a very complete one and one which suggested certain amendments to enable the proper protection of the reef. So, quite clearly, the coalition will be supporting the general thrust of this bill and nearly all of the amendments.

However, at this stage, for the convenience of the government, the Greens and the two Independent senators, I want to very briefly indicate the way that the coalition will be dealing with this piece of legislation. Later on, Senator Scullion, the Leader of the National Party in the Senate, will be moving a second reading amendment to refer the bill to the Standing Committee on Environment, Communications and the Arts for inquiry and report. Senator Scullion will speak to that later. I will not say any more except to alert the chamber that that will be raised later as a second reading amendment.

When the bill gets to the committee stage the coalition has several amendments that we will be moving. I appreciate that at this time in debate I do not need to alert the chamber to what we are doing, and some may say that it is unwise to do that—that it is always useful to catch your opponents off guard—but I think this is such an important issue that I want, in this second reading debate, to alert others to what is happening so that they can be properly informed and can properly assess the approach the coalition is going to take.

There is an amendment that I just wish to mention briefly. In relation to the board of the Great Barrier Reef Marine Park Authority, the proposal in the bill is that the number on the board be increased from three to five. Of course we support that. One of those members, according to the legislation before us, is to be an Indigenous person. We will be moving an amendment to say that, as well, one of those board members should be a person with experience in the tourism or another industry associated with the Great Barrier Reef.

This amendment has come forward after consultation with those who are vitally involved in the proper management of this Australian icon, and it is an amendment that I would hope would find support from the government as well as from the minor parties and Independents here. I think it is essential, in making sure that we have the best people in charge of the authority, that we have a wide range of experience, and I think it would be remiss of the parliament if we did not insist that those in whose interests it is to make sure the reef is very carefully managed are given a say on the board. I appreciate it is not a representative board; it is a board of people with skills to do the right thing—but we are signifying an Indigenous person there, and I think we should also ensure that one of the appointees is someone with experience in tourism or one of the other businesses that deal with the reef.

The other coalition amendment that I will be moving, also on behalf of Senator Boswell, is again an amendment that I would hope would find favour with the government, if not the Greens. I certainly hope it would find favour with the Independents as well. It relates to the early stages of the rearrangement of the Great Barrier Reef. I will go into this in more detail when we are dealing with the amendments at the committee stage, but I just wanted to alert people to where we were going.

When the new zoning arrangements to the reef came in just prior to 2004, I think it was, it meant a whole new range of zones were put in place in the Great Barrier Reef Marine Park. They ranged from green, no-take zones to yellow zones, which allowed some recreational fishing—different zones for different things, in accordance with what is seen as best practice in managing a very fragile marine environment like we have in the Great Barrier Reef Marine Park. They were very controversial in some cases, and I know my colleagues Senator Boswell and Senator Joyce will be talking, among other things, about the impact those zones had on the fishing industry, on the lives of many families and on the economies of many communities up along the coastline that hosts the Great Barrier Reef. They were controversial. They were subject to a lot of discussion, a lot of arguments, but they were eventually implemented by regulation in this parliament, and the regulation was never disallowed by this parliament, so they stood.

There was a lot of angst about the management of those zones—and, again, others will tell you about them in the course of the debate. But I want to briefly go to the issue of enforcement. Once these plans came in, there were a number—the figures vary—of charges laid against people who were alleged to have breached the rules for these new zones. In many cases, in accordance with the legislation, fines were imposed and convictions were recorded. Although some of those charged disputed they had done anything wrong, the general feeling was that if you have to go to court and have to engage a lawyer it will cost you an arm and a leg, and the fines were not thought to be particularly large, so a lot of people just let them go through to the keeper.

One person did challenge them many years after the event, and a court determined—and I speak very broadly here; I am not going into the detail—that determining someone’s position on the ocean via GPS was not a proper substantiation of their entry into a zone where they should not be, and the court ruled against the conviction in that instance. Now, if any others had decided to challenge those charges in court, they might have had the same result. But a lot of them did not, and that is understandable; it is very difficult at times to justify the financial burden of taking these issues to court.

However, many people—in fact, I would suggest, most people—did not realise that the offences with which they had been charged were indeed criminal offences, which had the result of giving them a criminal record. To that in itself you might say, ‘So what,’ although it does have some implications when applying for jobs. But it does have a more serious consequence in that we received reports that people convicted of these offences who applied for visas to foreign countries had been knocked back on the basis that they had a criminal conviction. This was far from the intention of the legislature, of the government, and, I am sure, even of the prosecutors when these offences were recorded. So there has been this unintended and quite serious consequence, a record of criminal conviction, for actions which, although they might have been offences, are a bit like speeding offences almost.

So as a result of a lot of work by my colleagues, particularly, I have to say, Senator Boswell, this issue was raised and we have been trying to work out how we can ameliorate the effects of these convictions. During estimates in May of this year I raised these issues with both the Minister representing the Minister for Home Affairs, who deals with pardons, and the Minister representing the Minister for the Environment, Heritage and the Arts, and sought their advice on how you can go about getting pardons. I want to be fair; I do not want to verbal them and say that they agreed that, yes, we should do this; but the answers I was given in estimates suggested to me that it was appropriate for these people to apply for pardons and that if applications for pardons were made they would be seriously considered. To that end, I put a proforma on my website, inviting people to use it as an application to the minister. I have no idea of the outcome; it is a matter between the convicted person and the minister. I have no idea how many applied or even whether they applied. Senator O’Brien, I think it was, mentioned yesterday that there were only four who had applied for pardons, and I accept that he is telling the truth on that. I understand, although this has not been confirmed, that none of those applications have been successfully dealt with or acceded to by the Minister for Home Affairs—but, again, I do not know that.

Anyhow, the coalition will move amendments to this act to try and ameliorate those very harsh and, I suggest, unintended consequences of convictions under section 38CA of the Great Barrier Reef Marine Park Act 1975 by expunging the records of convictions. I say this deliberately to alert the government and the minor parties to the fact that I have circulated two amendments, the first of which will call for those who were convicted during that period, under that section, to receive a free and absolute pardon by the Governor-General in the exercise of the royal prerogative of mercy. I would hope that that amendment will attract the support of the majority in this chamber and, indeed, in the other chamber. I have circulated an amendment to give other parties time to consider it, look at it and perhaps alert me if we have not covered all of the legal implications that adoption of that amendment might bring. In all fairness, to try and get to a result in this issue, I speak briefly about that now.

I also have what I would call a foreshadowed amendment. If for some reason the majority of the Senate is not prepared to go as far as a pardon, I have a foreshadowed amendment which asks that those convictions be treated as spent convictions, under part 7C of the Crimes Act, meaning that, although the convictions stand, the record of those conditions will be expunged from the record so that they do not have to be disclosed by anyone. Whether that will have an impact on foreign countries dealing with visa applications, I do not know—that is a matter for the law of other countries—but I think it is the best we can do. I hope the pardon amendment will receive favourable consideration; if not, there is a fallback position. I mention those openly in advance so that other parties, including Independents and the Greens, can have a look at those issues.

With those amendments, the coalition will be supporting the bill. As I mentioned earlier, and Senator Scullion will speak more about this, we hope that a committee of the parliament could have a closer look at the bill. I know Senator Joyce has concerns about some definitions, and he will no doubt tell the Senate about that later. It is something that could be looked a little more closely without interfering with the appropriate passage of the bulk of this bill, which I think all the parties do support.

In conclusion, I make the point that the Great Barrier Reef is part of our environmental heritage and it is part of who we are as Australians. It is our responsibility to protect it. All Australians—Indigenous and other Australians—are custodians of the reef and we have to play our part in ensuring that it is properly protected. The bill, as I said, introduced by the current government, has taken four or five years to draft and present to the parliament. Even after all that time, it still has issues that need to be further addressed, and they will be addressed by my colleagues in speaking to the bill. Ultimately, it is legislation which the coalition proposed and it has been adopted by the current government, with some amendments. It is the result of the desire of all of us to ensure that the Great Barrier Reef continues to be maintained in the best possible way. I commend the bill to the Senate and urge the Senate to seriously consider the amendments that I have foreshadowed for the bill.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I want to bring to the attention of the Senate some of the issues that are contained in the Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008 that have, I believe, serious consequences, not only for those involved with the Great Barrier Reef Marine Park Authority or those adjacent to the Great Barrier Reef but also for those who live adjacent to the coastline—in fact, adjacent to any fishing area—and those who have an interest in the law itself.

I just go back to the start of where GBRMPA comes from. As everybody knows, in 2002 the Democrats held the balance of power in the Senate. As a result, they negotiated an agreement which would allow the government to go ahead with the GST in return for a one-third closure of the reef and the removal of sulphur from diesel. The decision to close a large portion of the Great Barrier Reef was not based upon scientific or economic analysis; it was based upon a needs analysis and was based purely upon a deal. At that time the Great Barrier Reef was being fished at a level that was under one per cent of the UN’s recommended sustainable level. The level of fishing has reduced further since. The decision came at a cost to taxpayers of about $220 million when it was initially anticipated that it would cost GBRMPA about $2 million to pay out certain fishing licences and compensation.

The Barrier Reef bill, as it stands, still refers to the enjoyment of the area for social and economic activities. As such, you would suspect that it would still have recreational and commercial fishing as part of it. The reef is a huge renewable resource and, as it is adjacent to the people of North Queensland, it is absolutely vital that it not be turned into some sort of total exclusion zone, leaving those people totally isolated from one of their most important means of recreation. You have to remember that in this area there are stingers, which preclude a lot of people from swimming in the area. We have the effect of crocodiles in the estuarine area. If you take away the joy of fishing, you start to take away a whole means of recreation for those people. It would be like banning surfboards at Bondi Beach, but we have started to head towards it in this bill.

There are a couple of things that I find completely onerous in this piece of legislation, and I would like to bring three of them to the attention of the Senate in detail. The first is item 9 of schedule 6, an amendment to section 3(1) of the Great Barrier Reef Marine Park Act 1975, which is the definition of ‘fishing’:

fishing means any of the following:

searching for, or taking, fish—

not actually catching it, but searching for a fish—

(b)

attempting to search for, or take, fish;

(c)

engaging in any other activities that can reasonably be expected to result in the locating of … fish;

(d)

placing, searching for or recovering fish aggregating devices or associated electronic equipment such as radio beacons;

(e)

any operations at sea directly in support of, or in preparation for, any activity described in this definition;

(f)

aircraft use relating to any activity described in this definition except flights in emergencies …

Let us just think about it. Let us take out the word ‘fishing’ and, for the sake of argument, put in the word ‘kissing’: ‘“Kissing” means any of the following: searching for a partner; attempting to search for a partner; engaging in any other activities that could reasonably be expected to locate a partner.’ You see how ridiculous, all-encompassing and onerous this definition is. It is not a case of catching somebody doing something wrong; it is a value judgement as to whether you think they are doing something wrong. It is a value judgement as to whether you consider that they might be going to do something wrong. Yet the Greens are going to support this, and this is the sort of stuff that would leave our terrorism laws for dead. This is an absolute ripper, where I can go up to you and determine that you might have a thought in your head that involves fishing, and therefore you may end up with a criminal conviction for what you thought.

I do not care if you take fishing away from this whole scenario. In that structure, this amendment to section 3(1) is onerous on its own and should be knocked out, not because of fishing but because it is a contemptible paragraph in our legislation books that I think should be struck out. If you make an excuse to put that sort of thought-police material into a piece of legislation, you have created the imprimatur for it to go into other places. That is one of the concerns that have worried me deeply about this legislation, and I expressed the same to the joint party room the other day. I really wonder if even the Greens agree with this piece of legislation. If they and other members in this chamber agree with this amendment to section 3(1), they should be called to account, especially if, at a later stage, they find contentious other things that regard the security of the nation and that would possibly mimic that. You can all see the sort of mimicry that could be attached to that with regard to terrorism offences, and you can see how we leave ourselves wide open in an area which we should be ever vigilant against—that is, the area of thought police.

This idea of the thought police is further enhanced in item 12 of schedule 1, another amendment to section 3(1) of the Great Barrier Reef Marine Park Act 1975, with the so-called precautionary principle:

precautionary principle means the principle that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible … damage.

All of the end sounds flowery and wonderful, but the front end of that clause is the part that stings. It means that the principle is that lack of full scientific certainty—that is like saying ‘lack of full evidence’—or lack of the capacity to prove an issue is a reason to convict. The precautionary principle is not precautionary; it is dangerous. If you cannot prove something on environmental or socioeconomic grounds, you cannot just say, ‘Because I have an inherent fear, it is an issue.’ I think that is something that is of major concern, and that is a part of the drafting of this legislation which should, at the very least, be the subject of an inquiry and of wider discussion and ventilation so that the people of Queensland and the Australian people in general can have their say about this issue.

I was disappointed—given that we talk about the process of the Senate, respecting the Senate and all these things—that, when there was an inquiry suggested before, it was knocked out. It never got through. Why? Because the Greens did not vote for it. The Greens, the people who put themselves up as the arbiters and protectors of freedom, voted against an inquiry. It is amazing how the worm turns. The Greens voted against an inquiry that would, in essence, deal very seriously with the issue of the insertion of the thought police into our legislation. It is an interesting world we live in. The Greens voted against an inquiry that would talk about a section of the legislation amending the Great Barrier Reef Marine Park Act 1975 to create section 61AEA, ‘Directions limiting access to Marine Park’. This is the so-called ‘three strikes and you’re out’ clause.

Legislation similar to this would suggest that, if you were caught committing three driving offences, you would not be allowed to drive a car again ever. That is the sort of legislation that is currently being devised in this chamber, and it is going to go to the Australian people without an inquiry and without any further discussion. I want to read to you some information on the criminals we are catching with this sort of legislation:

Fact: D was a master of a vessel with one passenger. He was fishing but didn’t catch anything. A passenger, his grandson, was not fishing. He was aware of the zoning but couldn’t understand it. He did not own a zoning map. He thought he was in the right zone to fish. That man ended up with a $1,000 fine and a criminal conviction.

There must be something wrong with that. Surely that rings a bell somewhere. Surely the punishment should be something similar to a speeding ticket rather than a criminal conviction. That gentleman now could be precluded from obtaining a passport. That is the sort of legislation that the Greens do not want an inquiry into. We must be completely vigilant about this. We are going to make another attempt to get an inquiry into this issue. We are going to make another attempt to see whether the Greens have an issue with the thought police. We are going to make another attempt to see whether the Greens believe that a grandfather and his grandson should get a criminal conviction for accidentally fishing in an area. It was probably just adjacent to the coast where the grandfather lives. We are going to make another attempt to find out whether the Greens want an inquiry into the ‘three strikes and you’re out’ clause. We will make another attempt to find out whether the Greens believe in the precautionary principle—that is, the so-called ‘even if you can’t prove it, it doesn’t matter’ principle.

This is so important. If we let this legislation pass here it will become the legislation for Tasmania, it will become the legislation for Western Australia, it will become the legislation for other fishing grounds and it will become the premise for the creation of other like legislation for other areas. I do not know whether this should go to the Senate environment committee; I think it should go to the legal and constitutional committee. They should look at it in the area of, ‘Look at what we’ve devised today.’

We have to see this for what it is. The Great Barrier Reef Marine Park is a park, not a zoo. For tens of thousands of years there has been interaction between the people living adjacent to the reef and the resources of the reef. I will also inform the Senate that some of the people who have been convicted were convicted when they were teaching their sons to spear fish, so we are looking at something that involves members of the Indigenous community. We have changed the whole nature and concept of the way the Great Barrier Reef has worked for tens of thousands of years. We in the south have, by our own mechanisms, made a decision for another part of our nation that probably has not taken in—in any way, shape or form—the reality, the custom and the practice of how the reef has worked.

It is going to be an interesting vote, and I hope that those who are following the debate know that this is not just a debate about the Great Barrier Reef Marine Park Authority. This will be a vote about jurisprudence, about a new direction in law. When onerous clauses like this come into our legislation there is always a noble purpose. There is always a wonderful purpose as to why we should put greater caveats on the freedom of the individual. That is so much so now that we are putting caveats on how people think. It will be interesting to see whether those who in the past have risen in this chamber as ardent protectors of a greater breadth of freedom and have admonished laws, especially around things such as terrorism, will in the same breath—and this is not so much about whether they vote for a law that is about thought police—not allow a committee of inquiry to discuss it further.

Ron Boswell (Queensland, National Party) Share this | Link to this | Hansard source

The time is short—in fact, there are probably only two minutes—but I will endeavour to fill in that time. It is very good to follow Senator Macdonald and Senator Joyce. They both analysed this legislation very well and indicated primarily that this is a path we should not be going down. Some time ago the coalition decided that they would do a review of this legislation, and that was done on 14 December 2006. Prior to that, this legislation was introduced after GBRMPA came around and saw members of parliament. It said to them: ‘We only want 25 per cent of the reef. Yes, we’ll put in these biodiversity zones and zones that people aren’t to fish in. Don’t worry about it, Senator Boswell. We’ll look after you. We’ll go and talk to all the fishing people. We’ll find the particular areas where they fish and we’ll let fishing continue.’ So everyone was lulled into a false sense of security.

I took GBRMPA at its word, which is the worst thing I ever did. That was the biggest mistake I have made in this parliament. When the maps came out, we found some terrible failures of GBRMPA to honour their commitments to the fishing industry and the amateur fishermen. They took 33 or 35 per cent of the reef. We were then forced to go and reduce the fishing effort, because you cannot lose a 35 per cent area and still have the same effort.

Debate interrupted.