Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

I table two supplementary explanatory memoranda relating to government amendments to be moved in relation to the Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008. The memoranda were circulated in the chamber on 28 August and 15 October 2008.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

I move opposition amendment (1) on sheet 5510:

Schedule 2, item 1, page 12 (after line 10), after subsection 10(6A), insert:

      (6B)    At least one member must have knowledge of or experience in the tourism industry or another industry associated with the Marine Park.

It is now two or three months since the second reading debate on the Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008, so I thought it might be useful for the chamber and for participants in the debate to recap briefly on the nature of this amendment and other amendments being proposed by the opposition. As the minister has just mentioned, the government has two amendments relating to prohibiting geological storage operations and in relation to the definition of fishing. Both those amendments from the government have been in response to calls by the opposition, both in this chamber and in the other place, for further work on those. So I am pleased to see that the government has taken the opposition’s lead and addressed those two issues, and I will speak more about them later.

The opposition, whilst generally supporting this bill as being appropriate for the management of one of Australia’s greatest natural icons, the Great Barrier Reef, does believe that there are some inefficiencies in the bill that need to be addressed. They are only relatively minor amendments but they would improve the operation of the bill, and we are certainly hopeful that other senators will support the amendments that we raise.

The first amendment, the one we are discussing now, relates to the new board of the Great Barrier Reef Marine Park Authority. We are suggesting in this amendment that one of the board positions be for someone who has experience in industries associated with the Great Barrier Reef. I will speak a little further on that later. Senator Joyce is considering moving an amendment on the definition of fishing, which was raised in the inquiry by the Senate Standing Committee on Environment, Communications and the Arts. By all reports coming from that committee, the existing definition came under some scrutiny, and I notice that the government has also taken up that issue and has its own amendment.

Perhaps the most significant amendment being proposed by the opposition—and I hope it will be supported by all senators—relates to the convictions that were recorded against people breaching the green zones when the green zones were first dramatically altered and increased, back in 2004 I think it was. This was an initiative of our government for all the right reasons, although many would perhaps not agree with that. It was an initiative that the then Howard government brought in to protect even greater areas of the Great Barrier Reef. This, of course, continues the coalition’s very strong support for this natural icon that was initiated back, I think, in the Fraser years in declaring a marine park in the Great Barrier Reef area. The amendment is in line with the coalition’s strong support for the Great Barrier Reef over many decades through legislative action, which, as I say, was initiated by the coalition government.

When the zones were increased, a fairly dramatic enforcement and penalty arrangement came into place. There were some quite substantial fines and the offences were treated as criminal offences. There were quite substantial fines—ranging anywhere from $500 up to, I think, some at $60,000—but, as well as that, the convictions gave criminal records to those convicted. In many cases, these were mums and dads out fishing with the kids in the wrong area. They were fined quite substantially but, in addition to that, they had a criminal record which many found in years to come would inhibit them in certain ways. One person at the inquiry gave evidence that his application for insurance had been treated differently because, when he was answering a question, he had to indicate that he had a criminal record. There were other instances of people travelling overseas who had trouble getting visas because they had to disclose that they had a criminal record. And there were many other instances that were brought to the attention of senators. I particularly acknowledge Senator Boswell, who has been on this case for some time, as have I—and I know Senator Fielding and Senator Xenophon have been concerned about these issues as well.

The then government, after a couple of years of this legislation, realised that this was really using a sledgehammer to crack a nut—as they say—and realised that, whilst the fines were appropriate, this having of a criminal record was quite inappropriate for this type of offence. So the then government changed the arrangements so that on-the-spot fines could be issued. These infringement notices then became the norm, and the infringement notices issued to offenders still involved very substantial fines. So there was a real penalty involved. But, with the use of infringement notices, there was no criminal record on the offenders—most of whom, as I say, were family people out for a day fishing in the Great Barrier Reef who went into the wrong zone, either deliberately or innocently, and that attracted a substantial fine, and no-one argues about that. So the criminal conviction matter was dealt with by the infringement notices.

So, post 14 December 2006, most of the people breached for conflicting the green zone laws got this infringement notice and paid a fine but there was no criminal record. Those who had been convicted under the old legislation—before 1 July 2004 and 14 December 2006—were left with the monetary penalty and, in addition, they had a criminal conviction recorded against them. The coalition—through approaches from the recreational and commercial fishing industry and through, as I say, a lot of good work done by Senator Boswell, amongst others—brought this matter to notice, and the previous government indicated in 2007 that it would legislate to remove the criminal convictions of those people convicted between 1 July 2004 and 14 December 2006. This was agreed to not only by the coalition but also by the Labor Party, the then opposition. The then opposition spokesperson, Senator O’Brien, in, I think, Townsville, when approached regarding this issue, said on behalf of the then Labor opposition—and I am sure Senator Boswell will quote his words later, but they are well recorded—’We should have a bipartisan approach to this; we should both adopt the same thing.’

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

Senator Boswell interjecting—

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

Well, more than that, Senator Boswell. He gave the clear impression that the Labor Party was at one with the coalition in addressing this issue. Unfortunately, the then government was not in a position to amend the law when the parliament resumed after the election. We thought and hoped that the current government would honour its election commitment to change the law, but it has not done so. We have inquired about it at estimates on a number of occasions, and I and a lot of other people have written a lot of letters to the government about it, but it has found a deaf ear with the government. So, as a way of implementing not only what the coalition promised but also what the Labor Party promised before the election, we have come up with an amendment.

That is the background to the amendments that are going to be moved by the opposition. I just want to deal briefly now with the amendment before the chair, which relates to at least one member of the board having knowledge of or experience in the tourism industry or another industry associated with the marine park. Appointments have been made to the board, as it now stands, by the current minister. An Aboriginal person, Melissa George, has been appointed—and that appointment is appropriate. Mr Russell Beer, a solicitor from Cairns, has also been appointed to the board. He is a very significant businessperson in Cairns, in Far North Queensland, and he has had a role in government advisory committees previously and is involved with Advance Cairns, which a sort of business-commercial and government promotion bureau in the Far North Queensland area—and that is quite an appropriate appointment.

But neither of the appointees, as far as I am aware—and I do not know either of them terribly well personally—has any direct experience with the Great Barrier Reef. I assume Mr Beer, as a solicitor in Cairns—and I once used to practise that profession in North Queensland myself—would be doing things related to the Great Barrier Reef, but his principal activity is commercial law, which I understand he does very well. But I think the board would benefit by having someone on the board who had direct experience in relation to the Great Barrier Reef.

Our amendment says ‘the tourism industry or another industry’, and that could be a fishing industry, a boating industry or anything that has a relationship to the reef. I would certainly like to have someone nominated by the Association of Marine Park Tourism Operators considered by the minister as an appointee to the board. I say that because the Association of Marine Park Tourism Operators—a very good organisation—are very responsible people who understand that their future depends on keeping the Barrier Reef in a very pristine condition. In fact, they already spend a lot of their own money dealing with the crown-of-thorns starfish and in many other ways enhancing the unique experience that is the Great Barrier Reef.

There are very substantial monetary benefits to Australia from tourism activity on the Great Barrier Reef. Many thousands of Australians are employed by the tourism activities along, across, near and adjacent to the Great Barrier Reef. The administration of the marine park would be better served if we could be assured that there would always be someone there who had some direct experience on the reef. I understand that these are not representative bodies—at least, I understand that that is the government’s position; it was certainly the previous government’s position. They are not representative board members. They do not represent anyone in particular. They are there because of their experience and expertise, as board members, related to the Barrier Reef. But it would certainly benefit the administration of the authority if there was someone there who had a direct and constant association with the reef, an understanding of what is happening day by day, week by week and month by month, an understanding of how the reef acts and an understanding of the importance of the industries that are associated with the reef.

I guess the government would say, ‘Well, look, we’ll consult widely and we’ll appoint people to the reef.’ That is the prerogative of the government. But I think that this amendment would ensure that the government, when picking whomever they like, at least would pick someone who has that direct experience and direct connection with the reef. I urge all senators to support this amendment. It has no cost and is otherwise unexceptional as an amendment, but I think it would improve the bill before us.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

I would like to touch on the amendment that has just been put forward—the industry representative—but I also want to touch base on something else that was shared just before about the convictions of some people up in Queensland, which was alluded to by Senator Macdonald. To remind people of this issue, there were at least 115 and up to 324 fishermen who were deemed to be criminals by the previous federal government for innocently dropping a fishing line in waters that were part of the Great Barrier Reef Marine Park. I think everybody accepts that copping a fine for straying into the Great Barrier Reef Marine Park green zone is fair enough, but there was nothing really fair about these hundreds of fishermen having a criminal record against their name. If they did the same thing today they would not have a criminal record. So we have here a situation in which people were previously caught under a law that was not right and in December 2006 it was changed—

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

Who changed it?

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

I will take the interjection. In actual fact it was the Howard government that changed it.

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

It was me.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Let me continue if I may. Family First has supported all the attempts by these fishermen to clear their names and has spoken out on their behalf to highlight the injustice of their situation. Family First raised the issue directly with the then Prime Minister, John Howard, last year and then with the current Prime Minister, Kevin Rudd, this year. Family First raised it with the then Minister for Justice and Customs, Senator Johnston, and then with the Minister for Home Affairs, Bob Debus, this year. Earlier this year Family First also moved a couple of motions in support of the fishermen.

To deem these people as criminals is an outrageous act. These people have had a stain on their reputation, which has compromised their ability to have the freedoms that others have when they travel, and sometimes even to get a job, due to putting a fishing line in the wrong area. These are average blokes, average Australians. They are recreational fishermen. Granddad has taken the kids out to dangle a line and pass the time with the family or a group of mates in a tinny—many people can relate to that—and they have made a genuine mistake. As I alluded to before, the Howard government acknowledged that it had made a mistake in December 2006 and fixed the problem by downgrading the offence to an infringement with a $1,100 fine. But the issue here, the injustice that it is not a fair go, is that fishermen still carry the mark of their conviction. It has not been removed, and they still pay the price for the Howard government’s mismanagement of the issue.

Family First supports the amendment that will be coming up a bit later, which will see that the fishermen have their criminal convictions spent. We were originally going down the process of a pardon, but can fully understand that a spent conviction effectively does the same thing. So I can understand that that is perhaps a cleaner way of doing it. Moving the amendment here later on is certainly a good way of going forward if it has the support of the coalition. Basically, a spent conviction will remain invisible to all, and removing the stain from the lives of these fishermen will be a great relief to many. I also think that, when you can realise that a mistake has been made and you clean it up, it shows that this is a fair Australia. It is a pity it has taken so long. The fishermen have had this hanging over their heads for quite a while. I make it quite clear that I will be supporting the amendment which will come up later and which will see the convictions for these fishermen as being spent, and I support giving these fishermen back their lives.

With regard to the amendment being put forward here—industry representation—the problems and the hassles that we have had with these criminal convictions show that it would make sense to have more industry representation. Family First will be supporting that amendment as well.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I will deal with each amendment as they come up, rather than taking a lot of time now on each amendment, which I will only repeat later. The Greens will not be supporting this amendment, which deals with the industry representative. The amendment gives one industry specific representation on the authority. I know that the opposition suggests that an Indigenous person has representation. The Indigenous representation is specifically on the authority because of their knowledge and experience of Indigenous issues. That is particularly important for management of such an important area. This authority is not a representative body but a merit based body. We do not believe that there is justification for picking out the tourism industry for representation on this body. Everybody else will be there on the basis of merit except the tourism industry person, who will be there because they are a representative.

If we are going to a merit based body, we do not believe that it is appropriate to be mixing the two. We believe that there is nothing to stop a person with industry experience from being appointed to the authority under the current arrangements. The authority will be undertaking extensive consultation processes, which, if carried out properly, will be sufficient to ensure that the point of view of the tourism industry and other industries will in fact be taken into account. So we do not support the tourism industry being made a special representative on the board. We believe that the process outlined in the current bill is appropriate to deal with the merit based authority. Having said that, we do strongly support the appropriateness of having on the authority an Indigenous person with special knowledge and experience on Indigenous issues relating to the park. We specifically believe that it is important that we do have that knowledge and experience on the board. We will not be supporting the opposition’s amendment.

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

This legislation will bring a tragic saga to a close. This started out as a tragedy and I hope that we can salvage something out of the legislation by passing the amendment that Senator Ian Macdonald and I have moved. To go back a few pages on this, it started off with GBRMPA deciding that they wanted 25 per cent of the Great Barrier Reef for biodiversity regions called regional area programs and then upping that to 33 per cent. I do not blame GBRMPA altogether; we were in government, we made the mistake and we are trying to fix it up today—admittedly six or seven months later, but we are going to achieve that by the fact that Senator Xenophon and Family First, I believe, are going to support this amendment.

We started off saying that the legislation was going to cost $1.5 million or maybe, rounded up, $2 million—but $255 million later! That is what it has cost this government to buy out the fishermen, to pay the net makers, to reimburse the boat builders, to reimburse the outboard motor people and to reimburse the people who process the fish. That is an overrun of $235 million. If you were running a business, Senator McLucas, what would you do to an accountant who came to you and said, ‘This is going to cost $3 million’ but then it cost $255 million? You would sack him on the spot, and I would say that he deserved it. Unfortunately, this is what happened with GBRMPA. GBRMPA told the government that it was going to cost about $2 million. We know that there will always be a bit of an overrun on these things, but $255 million! That is what the Howard government was in the hole for and it paid out.

One of the things that we did find out when the legislation went through was that people were going to be imposed with a criminal conviction. On 7 July 2004, I raised this matter in the coalition party room and we got the criminal convictions changed to infringement notices. So people received a good hefty fine but they were not burdened with a criminal conviction. That left in limbo the people who had been convicted from 1 July 2004 to 14 December 2006. The amendment moved by Senator Ian Macdonald is trying to repair the damage.

It looks as though this amendment has the support of Senator Xenophon, who is always open to look at things openly and correctly; and the senator from Family First. So it looks as though this is going to go through—and I welcome it, because I went out and campaigned on this just before the last election. Just before the last election I went into the Prime Minister’s office and said, ‘This is a nonsense; this is wrong—it is morally wrong to convict these people.’ He agreed and he gave me a set of words that said we would fix it up if we were re-elected. Well, out on the campaign trail I went, as you do, about explaining your policies to the people. I was quite clear. I said, ‘If we are re-elected we will repair this damage to those people who have a criminal conviction.’ Not to be out done, Senator Kerry O’Brien, then shadow minister, said of the Howard government that it was holding fishermen’s votes to ransom. And he announced that it was ‘beyond the pale’. An article in the Townsville Bulletin said:

‘Frankly, it is an indictment on this government—

the Howard government—

that they are prepared to play politics about the issues,’ Mr O’Brien said. ‘Those who have been convicted have had these convictions sitting against their names for some time. Why couldn’t the government act before today?—

A fair question. It goes on:

Mr O’Brien said an elected Labor government was also sympathetic to overturning the criminal records of the 324 fishermen convicted for the offence. ‘This is about correcting the initial mistake, and we would take the bipartisan position on that’ he said.

I would be very interested to hear Senator McLucas, because I do not think the government is going to honour Senator O’Brien’s commitment. I do not think they will. If they do then I will be the first to stand up and congratulate Senator McLucas for seeing the light. She does come from Cairns and she does represent these 324 fishermen who have been convicted. She has an office in Cairns. I know many of these people would have called on her and explained the wrongness of this decision. If she is representing North Queensland she will stand up and say, ‘Senator Boswell, you are wrong. The Labor Party is prepared to back this amendment moved by you and Senator Macdonald.’ I hope that is right. I think you are basically a very fair sort of a woman.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

Only basically?

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

Well, I will un-qualify that: you are a responsible person. That statement will be tested by the decision you take on this legislation. But I will be the first person up to congratulate you when you say that you support this amendment.

I also want to take into consideration some of the evidence that was given by GBRMPA to our committee. I am shorthanding this, but GBRMPA said, ‘Look, we’re not going to fine people straight away. We’ll warn them. If they’ve got a GPS or a plotter with a downloaded zoning map on board, we’ll fine them. If they attempt to flee when we approach, we’ll fine them. If they attempt to obscure vessel registration numbers when surveillance flights pass or if they’re fishing within a metre of a sign advising that fishing is not permitted in the area, we’ll fine them. And if they over-reach their bag limit, we’ll fine them. Only when these things happen will we take the step of fining these people.’ Well, that is blatantly untrue. In the submission of GBRMPA, that was untrue. Then GBRMPA said, ‘Don’t worry about a criminal offence; it’s not going to make all that much difference.’ GBRMPA said, when the matter of insurance was raised, that it would not prevent insurance being issued unless the conviction raised questions about moral character. They told the committee:

We have similar advice from the Department of Foreign Affairs and Trade that the Australian Passport Office has advised that criminal convictions are not a basis for revoking or refusing the granting of a passport.

That is completely untrue. For GBRMPA to take a position which can be so blatantly shot down they must think we are a bunch of village idiots over this side of the chamber. We were given evidence that on both these issues their position was completely wrong. What did happen was people who took their grandson out in a tinnie got fined $1,000. They did not know that they were in a zone; they did not have any GPS on the boat. They did not have any way to find out. They acknowledged that they may have been in the wrong place, they started their outboard motor, pulled their line up and went away—but they got fined $1,000 for taking their grandson out. That is the case of Mr Alfio Maccarone from Innisfail, Senator McLucas—very near Cairns. Then there was the case of Peter Summerville, who went out fishing with his wife and was fined $1,200 and got a criminal conviction. His wife was fined $840 and got a criminal conviction. It is totally unfair. We have tried to change it. Today is the day that we can put this behind us and remove those criminal convictions from people’s lives.

One of the most powerful submissions we had was from a young guy who worked around people’s homes cutting lawns, doing duties and so forth. He said, ‘This is influencing my life.’ He and his brother came down from Cairns to go fishing and they put the boat in at Innisfail, or somewhere similar. ‘We thought,’ he said, ‘that the Barrier Reef Marine Park was out where the Barrier Reef was. We fished about half a mile offshore. We put the anchor out and within half an hour someone came and told us we were fishing in the Barrier Reef Marine Park green zone. I now have a criminal conviction. I have a young family. If I leave this job I will never be able to get another job.’ He was quite worried. He was a pest exterminator and he did other jobs around people’s houses. He said, ‘How would people like me to be going through their house exterminating pests if they knew that I had a criminal conviction?’ And yet GBRMPA said, ‘Don’t worry about a criminal conviction. It is not going to affect your passport, your insurance or anything else.’ Yet we have direct evidence given to us that all these things are taken into consideration. Senator Macdonald raised the question of a businessperson—a swimming pool manufacturer—who was not able to get insurance. He was going through the insurance process and he found that when it came to the question of possession of a criminal conviction he had to say, ‘Yes, I have.’ Their response was, ‘Well, sorry. We will ring you; don’t you ring us.’ So he was rejected. So, today is the day I hope the entire parliament can join with us—every senator: whether Green, Independent, Labor, National or Liberal—and support this amendment in order to right what was blatantly wrong and to remove the criminal convictions from most of these people. Some of the more severe ones we will not be able to get to, but we will remove the criminal conviction from every amateur fisherman and from most of the professionals.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

In relation to the proposed amendment that Senator Boswell has spoken of regarding spent convictions, I can indicate my support for it for these reasons: following discussions with the minister’s office—which I found very useful—and, of course, with the opposition and from representations I received, it seemed that there clearly was an intent to change the law on 14 December 2006. It was an acknowledgement that the earlier law allowing for convictions had, in a sense, gone too far; that there was a concern that individuals were left with the stain of a criminal conviction and that it was causing significant distress to many of those who had received a conviction. There was a debate as to what the appropriate level was—whether it should be $2,000, $5,000 or $10,000. It seems that a limit of $5,000 would deal effectively with recreational fishers by and large, but anything beyond that would be going more into the realm of the commercial fisher. It is not, though, a perfect solution. There was an alternative suggestion that there should be a pardon by the government in relation to these convictions. That, to me, seems to be an extreme solution for the problem. There was a discussion about retrospective expunging of the convictions. That does not seem to be appropriate. The convictions will be spent in any event under legislation, but what is being proposed here allows for an acceleration of the time frame for the convictions to be spent. Given the legislative change on 14 December 2006, given indeed what the then opposition said in the lead-up to the last election about this whole issue, I think this is an appropriate way forward.

In relation to the other amendment on the composition of the board, I agree with Senator Siewert that it is appropriate that there be an Indigenous representative. That is entirely appropriate, and it is important. In relation to the amendment moved by Senator Macdonald, I have one significant reservation with it. I do not have a problem with there being a representative of the tourism industry; because I think the tourism industry knows that for it to thrive in that area it needs to have an environmentally sustainable, very viable, marine park. I think they have a vested interest in facilitating all that can be done to ensure that outcome. I do take issue with the reference to ‘or another industry’. That would give the minister the discretion to appoint someone from, for instance, the fishing industry, and I think there could well be a real conflict of interest there. If it were to be limited to the tourism industry, I would be amenable to that amendment. I note that this is still an appointment to be made with the authority of the minister, and so there is still significant ministerial discretion. I just do not feel comfortable with that discretion being extended to an industry other than the tourism industry because I can see a potential conflict of interest if the fishing industry were to be invited onto the board.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

I want to briefly respond to Senator Siewert’s issues. Senator Siewert said, quite rightly, that it was important to have an Indigenous person on the board. As I initially indicated, it is a government amendment. It is in the government’s bill and it is being supported by the opposition. I also mentioned Melissa George as an appropriate appointment. Senator Siewert acknowledges that that person has knowledge and experience of the Barrier Reef and of cultural issues relevant to it so she, for that reason amongst others, supports it. But why does the same not apply, Senator Siewert, in relation to the tourism operators? Again, they have the actual knowledge and experience and, as Senator Xenophon has just said, the pristine state of the Barrier Reef is perhaps more commercially important to the tourism industry than it is to anyone else. The tourism industry would have as much interest as even the most ardent environmentalist in making sure the reef is properly managed.

Again, as Senator Xenophon points out, these are ministerial appointments. It is not the industry appointing someone. That is up to the minister. The minister has discretion. There can be five people on the board—a chairman and up to four others. There is currently a total of only four, but it can be five. I think it is appropriate that one of those five board members should be an Indigenous person and that another should have real and direct knowledge and experience of the Great Barrier Reef. It is up to the minister to appoint whomever he likes. Senator Siewert said that the authority would be consulting before the appointment. Of course, it is not the authority who appoints the board members; it is actually the minister. Sure, the minister will consult. It is entirely within his discretion, as I understand it. But this amendment will require that, of the five people whom the minister has to pick, one will be an Indigenous person and another will have direct involvement in and knowledge of industries on the reef.

Taking into account what Senator Xenophon said, and subject to a short consultation with my colleagues in the chamber, I indicate that I could amend my amendment by deleting the words ‘or another industry’. The amendment would read:

At least one member must have knowledge of or experience in the tourism industry associated with the Marine Park.

I will think about that. Perhaps it does not even need the words ‘associated with the Marine Park’. I will give notice of an alteration to my amendment by deleting the words ‘or another industry’ in the hope that it may encourage Senator Xenophon to vote for the amendment.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Macdonald, are you foreshadowing an amendment or moving an amendment to your amendment?

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

I am in the committee’s hands as to how I procedurally go about this. I thought I just had to indicate that I wanted to amend my proposed amendment by deleting those words. As to how I technically go about that, I seek the advice of the chair.

The Temporary Chairman:

The amendment is before the chair. It will be put in due course. If you seek to amend the amendment before the chair, you need to seek leave to do so.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

Thank you, Mr Temporary Chairman. I will do that shortly.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I want to address a couple of issues there. Senator Macdonald, I am sorry if the remarks I made before sounded as though I thought the authority would be consulting before someone was appointed. That is not the point I am trying to make. When the authority makes decisions and considers important issues, it will consult widely—in other words, it will of course consult those who use the park. My argument is that you do not need someone with specific experience or expertise on the board of the authority because they will be consulted when these decisions are being made.

I believe there is a vast difference between the knowledge and experience that an Indigenous person brings to the park and someone who has a vested interest in it. I am probably going to upset some people in the tourism industry with these remarks, but some in the tourism industry are more exploitative than others. Unless you are going to define this person as being a certain type of tourist operator, it will be left up to the government to decide who that person will be and what sort of experience they will bring to the board. Some in the tourism industry are quite exploitative of the natural environment; others, of course, are very good and protect the natural environment. I think they bring a range of experience that the authority can consult when making its decisions. I do not believe it is appropriate to have on the authority a representative who has a vested interest in the tourism industry. You know very well that, next minute, we will have on the phone the mining industry and the fishing industry also wanting to be represented on the authority. We Greens do not believe that is appropriate. As I said, we believe that having an Indigenous person appointed as a member of the authority is important, because of their special relationship with the reef, and we support that in the bill. We do not support the amendment because we do not believe it is appropriate to have industry represented on this authority, but they will be consulted through the process. I want to clear that up for Senator Macdonald, and I apologise if it came across in another way.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

I seek leave to amend my amendment.

Leave granted.

I move opposition amendment (1) on sheet 5510 revised:

        (1)   Schedule 2, item 1, page 12 (after line 10), after subsection 10(6A), insert:

      (6B)    At least one member must have knowledge of or experience in the tourism industry associated with the Marine Park.

In moving this amendment, can I just say to Senator Siewert: yes, you certainly will upset tourism operators—you are quite correct on that—by suggesting that they are anything but absolutely 100 per cent supportive of the marine park. As I have indicated before, even if they were not that way inclined, their commercial interests would demand that they look after the reef because that is what they actually make their money from.

I have learnt a fair bit about the Barrier Reef over the years, and I cannot think of a tourism industry on the reef that would cause damage to it. The operators take boats out on the reef. They spend their own money, with some government support, on picking up the crown-of-thorns starfish so that in the areas where they take their dive platforms for tourists to go swimming there are pristine reefs. As I said, they spend a lot of money on sending divers down to physically pick up starfish one by one. That is only a drop in the ocean, one might say, but it is certainly something that they do. They are also very particular about any material being thrown overboard from the boats.

I just cannot think of any tourism organisation along the Barrier Reef that would in any way do anything that would damage the reef. They are even very careful about human waste in Barrier Reef waters. They talk about it with their customers. They are very particular. I am desperately trying to think of any industry along the Barrier Reef that could cause damage—even those operating island resorts. Why do you go to a Barrier Reef Island resort? Because it is pristine. The reef is there; there are clean beaches; there is native flora and fauna on the islands. They are particularly involved in that.

Again—if I can convince the Greens, although I am hopeful it will not be necessary—it is the minister’s appointment. At the moment he can appoint anyone. All we are saying is that one of the five has to be someone who has direct and immediate experience on the reef. We are putting that forward because we think it will enhance the ability of the authority to properly manage the reef. So I would again urge support.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The ‘tourism industry’ is a very broad definition. Are hotel operators, resort owners and developers tourism operators? I think I heard Senator Macdonald imply that they were tourism operators, so the term ‘tourism industry’ is very wide. I would be reluctant, for example, for a developer to class themselves as part of the tourism industry because they are building a hotel. Are charter boat operators part of the ‘tourism industry’? As we know, some of those people have actually been convicted—I am not going to stray into an argument about the offences—under this legislation.

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

No, they have not.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Yes, they have been; commercial operators have been. If they are charter boat operators, are those commercial operators, whether they be tourism operators or fishers, classed as being part of the ‘tourism industry’? This definition is very broad. I am very reluctant to support the amendment when it has such a broad definition because I do not think it is appropriate that developers, who potentially are going to exploit the Barrier Reef, be on the authority. That is one of a number of reasons that we have some concerns about the amendment. Even with the amendment that removes ‘any other industry’, we will not be supporting it because it is too broad and we are concerned about the protection of this very important ecosystem which is facing a number of threats. We do not believe that it is appropriate to have the tourism industry represented on the board. We do believe it is important that they are consulted and we believe that if process is followed they will be consulted appropriately in the management of the reef.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

In my contribution I want to focus specifically on this amendment. Many other speakers have talked about a range of issues, and I understand the motivation for doing that, but I am going to address the amendment—as amended, in an interesting piece of policy development—which goes to the question of the membership of the board of the authority.

The government does not support the proposal moved by Senator Macdonald to allocate one extra position on the board to a person who has knowledge or experience of the tourism industry associated with the marine park. It is interesting to note that we debated a similar issue when I was sitting over there and Senator Macdonald was sitting over here. It was around the question of whether or not we needed an Indigenous person on the board. It was, I think, at the end of 2006. The argument from the government at the time was that you did not need anybody with specific experience; you needed generalists who were interested in the long-term management of the authority. I differ with that in terms of Indigenous representation because Indigenous people are the only people who can represent Indigenous interests. That is why at the time I advocated that there be a specific position for an Indigenous person on the board. That has occurred, and Senator Macdonald now says that it is with the support of the opposition. It is a slight rewriting of history, I suppose, but that is not the point we are arguing.

At that time, the government—Senator Macdonald’s government—did not try to move that there be on the board a person with tourism or other industry expertise, and one would wonder why. The answer is very straightforward: because the then government did not think it was appropriate. Senator Abetz actually made a very important contribution. He said:

… if we start picking and choosing with the Great Barrier Reef Marine Park Authority, which has such a large and extensive range of interests associated with it, I daresay we could get a list with over a hundred different categories and classifications on it …

It is not often that I agree so strongly with Senator Abetz, but I suppose in this case he was making a good policy point and I think that policy point stands. He went on to say:

… tourism is clearly vitally important, the various rural sectors on land that might have an impact on the reef, the building sector, a whole range of scientific sectors and climate change experts. Quite frankly, the list could go on. In my own portfolio area of fisheries, undoubtedly there would be recreational fishing interests, commercial fishing interests—the list could go on.

Senator Abetz was absolutely correct then and he is still right now. We appoint people to the board of the Great Barrier Reef Marine Park Authority on the basis of the contribution that they can make to the ongoing management of the park. When we were in opposition there were a number of excellent members of the board. I think the two most recent appointments are persons who will continue the tradition of providing good management advice to the authority for its ongoing work. We do not need specific interest groups to be represented, because there are other, very broad-ranging ways in which not only the tourism industry but in fact all industries that are associated with the reef are consulted.

We have four reef advisory committees providing direct engagement of key stakeholders on the issues of tourism and recreation, fishing, water quality and coastal development, and conservation and heritage. So there is a reef advisory committee which goes directly to tourism and recreation. We have 11 local marine advisory committees, LMACs, in regional areas right up and down the coast. We also have regional offices of the Great Barrier Reef Marine Park Authority in Cairns, Townsville and Mackay.

The government is also establishing an advisory body, as recommended by the 2006 review. That process will allow engagement with all sorts of industries, including the tourism industry. As I said, we have two excellent appointments, Melissa George from Townsville and Russell Beer from Cairns. As Senator Macdonald quite rightly said, Mr Beer is a solicitor in commercial law who is extremely well regarded in the north, not only in Cairns but also in Townsville, with well known solicitors MacDonnells Law. He is very well regarded and extremely well connected in the business community and a person whose appointment I very much support.

So this amendment is not required. We simply do not need to quarantine one spot on the authority board for one particular industry. Senator Abetz got it right then. It was the right policy then; it remains the right policy. For consistency’s sake, I suggest that the now opposition stick with the policy that they had then because, as I said, Senator Abetz was right.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendment, as amended, be agreed to.

Question agreed to.

We will move to amendments (1) to (3) on sheet 5600.

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

The issue here is a little bit complex. I dare to say that I will also be asking the minister for advice on some of the following issues. The issues surround what I believe is not only an onerous and very prescriptive statement proposed for a certain act but also a model of prescription that could be taken into other sections of law. It could set a very dangerous precedent in Australia. I also note that the government itself is proposing an amendment to this. I hope that in discussing this people see it in the light of how they would feel if this was a prescription in other sections of law, even terrorism laws and laws such as that. As it stands, item 9, subsection 3(1) of the bill says:

fishing means any of the following:

(a)

searching for, or taking, 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, or taking, 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 involving the health or safety of crew members or the safety of a launch, vessel or floating craft of any description.

Although it may be put aside by the court, the inclusion of aircraft use in attempting to search for fish is an absolutely ridiculous concept. Someone could be flying over the coast, looking out of the window and saying, ‘I’m now over a green zone and I’m looking for fish,’ and they would be engaged in a criminal activity. This is prescriptive to the nth degree.

I acknowledge that the government must have seen the same thing and have put forward an amendment. The question now is, however, whether this article in this amendment to the Great Barrier Reef Marine Park Act 1975, or GBRMPA, would be relied upon for a criminal conviction or whether a criminal conviction would actually relate to something defined in the zoning plan. Which article would the courts use for the interpretation of this action? If they would use the zoning plan and not GBRMPA, then unfortunately both my amendment and the government’s amendment are without cause, and obviously I would therefore look for another avenue to take. The amendment proposed by me is also on behalf of other people in the opposition who have the same concerns—not so much pertaining to fishing but to an overprescriptive definition. If you allow that on one issue, you must be prepared to see it later on in law on other issues. If the court would rely upon GBRMPA then it is the government’s definition as opposed to mine.

I have put both definitions beside one another as a means of comparison. I see that, in the government’s definition, they have certainly curtailed the initial onerous definition of item 9, subsection 3(1) with a new subsection 3(1)(c). However, in so doing, it is still talks about ‘engaging in any activity in connection with taking or attempting to take fish’. I still see that as being overprescriptive. Does ‘engaging in any activity in connection with’ mean that, if I am on a boat with someone who, whilst on the trip, says, ‘I’m going to go fishing in a green zone,’ I am ‘in connection with’ his activity? If I am driving along with someone and unbeknownst to me they have fishing equipment in the car and intend to go fishing, am I ‘in connection with’ that event? The definition of being ‘in connection’ with ‘attempting to take fish’ also heads into an area that is too grey. ‘Attempting to take fish’, I believe, is too grey.

That leads me back to the amendment that is proposed, which basically, in summary, takes away searching for or taking fish and puts in something substantive, which is just taking fish—the action itself. This has been taken out in lines 26, 27 and 29. In liaising with my colleagues it is a point where there is some comfort, and I thank Senator Brandis for his assistance on this. Basically what we are doing here is making sure that there is no room for an overzealous court to go beyond what is precisely the action. I put forward to the government first of all whether they will clearly spell out what is the requisite act on which the premise of a conviction would be based. Secondly, in going through the explanatory memorandum and trying to define it myself, I notice that they talk about the moving of the definition by the GBRMP Act section 38CA to the interpretation section. Is the interpretation section, as noted in the explanatory memorandum on page 53 of 73, the zoning plan? I think those things need to be cleared up. If the GBRMP Act is the requisite act that will be relied on then I will continue forward with my amendment. If it is not the requisite part but it is actually the zoning plan, then neither my amendment nor the government’s amendment will have any effect.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

Senator Joyce, do you seek leave to move your three amendments together?

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

I seek leave to move the amendments at this stage. I suppose I can seek leave to withdraw them later on.

The Temporary Chairman:

There being no objection, leave is granted.

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

by leave—I move the amendments (1), (2) and (3) on sheet 5600:

(1)    Schedule 6, item 9, page 114 (line 26), omit “searching for, or taking, fish”, substitute “taking fish”.

(2)    Schedule 6, item 9, page 114 (line 27), omit “search for, or take, fish”, substitute “take fish”.

(3)    Schedule 6, item 9, page 114 (line 29), omit “locating of, or taking of, fish”, substitute “taking of fish”.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

I was going to give the opportunity for other speakers to speak if they wanted to. In response to Senator Joyce’s comment, can I say that, as the running sheet indicates, these amendments are in conflict with, and it says similar to, Senator Joyce’s, but I think similar is probably a stretch. I am suggesting I will speak in favour of government amendment (1) on sheet RE380, which is the next item on the running sheet, conjointly.

The amendment that the government is moving is in response to questions that were raised during the Senate inquiry, and it is appropriate that the government respond to those questions. Our amendment will clarify the definition of ‘fishing’ in the Great Barrier Reef Marine Park and Other Legislation Amendment Bill. During the Senate debate and during the inquiry into the bill by the Senate Standing Committee on Environment, Communications and the Arts, concerns were raised about the definition. The committee recommended that the definition be reviewed with the aim of clarification. The proposed amendment to be moved by the government delivers that clarification while preserving the integrity of the regulatory scheme.

As under current legislation, under the amended definition a person can only be considered to be fishing illegally in the Great Barrier Reef Marine Park if in an area closed to fishing if they have taken a fish, attempted to take a fish or are engaged in activities that are clearly a constituent part of taking or attempting to take a fish from an area of the marine park that is closed to fishing. An example is using fishing equipment or a fish aggregating device in zones closed to fishing. It is and will continue to be for the prosecution to prove beyond reasonable doubt that someone has taken or attempted to take fish in an area of the marine park closed to fishing. Senator Joyce’s amendments go to a so-called definition of fishing—

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

I will explain that later.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

Right. Thank you. Senator Joyce’s amendment goes to defining fishing as not searching for but taking fish. There has been a case that has been in the media in North Queensland about a gentleman who traversed a green zone with a line out the back of his yacht. He was convicted for fishing in a marine park. You have to ask the question: why was the line hanging out the back? Was he searching for fish? I think you have to say he was. But simply because there was not a fish on the end of that line, under your proposal you could argue that he was not actually searching for fish. I think that that would then cause there to be significant debate in the legal system, including the DPP, because you have got to include the searching for fish along with the attempting to take fish in a definition of fishing. It is a linear process. You search, you attempt and then you take. All of that process is in fact fishing. I suggest to the chamber that Senator Joyce’s attempts to say that, if you are in a Qantas jet flying up to Cairns, happening to go across the reef, and you look out the window—this is what Senator Joyce has suggested, perhaps in fun—you could be prosecuted for searching for fish.

I think we have to be very careful here. We know that we are playing the game of politics and the idea is to try and get people to support you, but let us do it on the basis of fact, let us do it on the basis of what is sensible and reasonable. If I am driving down the Bruce Highway towards Fishery Falls and someone says, ‘I’m going to go out in a boat today into a green zone to search for fish,’ are they likely to be prosecuted? Of course not, Senator Joyce. Let us be sensible about this.

This amendment that we are proposing, which will be dealt with next, will in fact clarify, as requested by the Senate committee, the definition of ‘fishing’—something that is extraordinary, for the people in the gallery, to have to define. I think we all know what it is, but we have provided that definition. Therefore, the proposal moved by Senator Joyce is not required. Senator Joyce, you asked for clarification on the interaction between the act and the zoning plan. Is that a correct characterisation of your question?

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

Yes.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

The bill includes an offence of breaching the zoning plan. Under the zoning plan, fishing in certain zones is prohibited, as you are very well aware. The zoning plan defines ‘fishing’ as taking or attempting to take a fish. It is this definition that is relevant in determining if an offence has been committed. The definition in the bill is only relevant once the offence has been proven. It is used in determining whether a higher penalty applies because the person was fishing using a commercial fishing boat. Does that answer your question?

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

I am considering it.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

Maybe. Okay, thank you. I commend the amendment that will be moved subsequent to this one being dealt with, if appropriate, and indicate that the government will not be supporting the amendment to define ‘fishing’ in the way that Senator Joyce has done.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

I have distributed to Senator McLucas and to other senators an unsigned and undated advice from the Department of the Environment, Water, Heritage and the Arts in relation to this definition. I will seek leave at a later time for this letter to be incorporated in Hansard so it can be used in any future hearing, regardless of what happens to either Senator Joyce’s amendment, which the opposition support, or the government’s amendment, depending on how it is dealt with by the Senate. In our dissenting report, we indicated that if you are looking at only the green zone offences then, according to this information, the existing definition is okay. Senator Joyce’s amendment deals with the wider bill and other issues. In relation to the marine park zoning issues and offences, according to this advice, to be convicted you would use the definition of ‘fishing’ in the zoning plan not the one in the act. That indicates that you actually have to take a plant, animal or marine product. The wider definition does not apply to offences under the zoning plan, according to this advice. After Senator McLucas has had an opportunity to confirm with the department that this document contains their advice and that it is accurate, I will seek leave to incorporate it into Hansard so in the future people can have that clear explanation—which I think is along the lines of what Senator McLucas just said to the Senate.

Senator Joyce’s amendment deletes ‘searching for’, and Senator McLucas gave an example of ‘searching for’ as a line over the back of a boat going through the marine park. I refer Senator McLucas to the second part of this advice from the Department of the Environment, Water, Heritage and the Arts in relation to ‘attempting’ under the Criminal Code, which would apply to this. The offence of attempting would, I think, cover the situation spoken of by Senator McLucas, in that if you have a line over the back you would be attempting to catch a fish. Attempting to commit any sort of offence is covered under this legislation as well as by the Criminal Code.

In support of Senator Joyce’s amendment, if a marine park tourism operator is out on the reef in a glass-bottom boat and wants to show overseas visitors a big school of fish, they would use their depth sounder on board to find some and they would say, ‘We’ll stop here and this is where you can dive in and have a look.’ The government’s proposed amendment states:

Fishing means any of the following:

                        …                   …                   …

(b) engaging in an activity including searching for fish or using fishing apparatus or using fish aggregating devices in connection with the taking or attempting to take fish.

That tourism operator may run foul of that, though I think I am answering my own question because it is in connection with taking or attempting to take fish, so perhaps my example does not apply. There could be a doubt there, so perhaps what Senator Joyce is saying is appropriate and needs to be supported.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I did not wish to speak before the minister previously because I wanted to hear the minister’s answer. The Greens will be supporting the government’s amendment to the Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008. I am just foreshadowing that. We thought the previous bill was okay but we think there was a lot of misunderstanding of the bill in the second reading debate and in committee, but the government’s amendments do clarify things so we will support it. We will not be supporting Senator Joyce’s amendments basically for similar reasons to that pointed out by the minister. We think you need more detail on the definition of ‘attempting to fish’ and the issues that Senator Macdonald was just talking about. I do think you answered your own question in terms of those activities having to relate to attempting to take fish or having the apparatus to take fish.

I also bear in mind the comments that the parliamentary secretary made—that is, that this has to be dealt with through the legal process. You have to provide evidence, and that was something that was also brought up during the committee proceedings. In fact, the briefing that the committee had prior to the committee proceedings was that all of this goes through the legal procedures. There are such things as being able to prove that people were in fact attempting to take fish or searching for fish for the purposes of taking fish.

We do not support the opposition’s amendments. We will be supporting the government’s amendments. We are also mindful of the fact that this is also linked to the issues around proving an aggravated offence, and we are mindful of the complexity of those issues. We will therefore be supporting the government’s amendments but not the opposition’s amendments.

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

In the comparison of these two issues what is clearly spelt out first and foremost is that, in relation to people who go fishing, definition 9 in subsection 3(1) was completely onerous. It has now been agreed to by the government. They obviously believe that their own legislation in the first instance was onerous; otherwise they would not be changing it. I am glad to see that. But we are still left in the position where ‘engaging in any activity’, including searching for fish using fish apparatus or using aggregating devices that are associated with attempting to take fish, leaves us in a very grave position. With regard to the interpretation of ‘any activity whatsoever’, I do not know why you need to say ‘including’ because if it is any activity it is any activity—full stop. But, for the purpose of attempting to take fish, there is the question of attempting to take them with what prospect of success. Who is going to be the arbiter of that? I believe that good law is law that errs on the conservative side but this is erring to the expansive.

I hear Senator Siewert’s and the Greens’ position, but they have endorsed it in the belief of an expansive and overarching definition of an act. Once you believe in that concept, you cannot chop and change. You therefore have a position where in other legislation before this chamber you will allow the use of expansive descriptions in a law, one that not only talks about what you are doing but also talks about what you may be going to do according to the interpretation of a third party.

‘Engaging in any activity’ does not close that definition down—it does not say ‘in any activity’ and then have some sort of caveat that mitigates its connection to ‘attempting to take fish’. So any activity relating to attempting to take fish will become something that is once more revisited in papers up and down the coast. Certain people who enforce the law will be within their rights to use, if they wish, an expansive interpretation of ‘attempting to take fish’. What the opposition has done, in consultation with others, is to take this down to something that leaves no shadow of a doubt as to whether you had broken the law—that when you were caught, you were caught.

I also endorse the fact that if someone is going through a green zone with a line dragging off the back of the boat they are obviously in the process of fishing. But this goes way beyond activities that could be regarded as attempting to take fish. In that regard, ‘any activity’ might be just having a line rolled up in the boat while going across a green zone. It is a matter of interpretation whether you are in the process of attempting to take fish simply because you have a fishing rod in the boat.

It becomes onerous when we have government erring towards being big brother rather than working hand in hand with people on the coast. This is a resource that has got to be shared by all. It is a tourism resource, it is a fishing resource, it is a natural heritage resource and it is a recreational resource. It is not just exclusively something that you should only be able to be involved with if you are standing on the beach looking at it. I am a bit surprised that the Greens would adopt a position where they are endorsing laws that deal not only with what you do but also with what people might perceive you might be doing to do. That in due course will turn around and bite us.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

In the 30 seconds remaining I would like to indicate that I cannot support Senator Joyce’s amendment. I support the government’s position. Following the inquiry process, the government has already come a significant way in tidying up the definition of ‘fishing’. My concern with Senator Joyce’s amendment is that it would simply be too broad and allow for significant loopholes. For those reasons I cannot support Senator Joyce’s amendment.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

I doubt that we will have time for the vote at this point. Can I say that the request from Senator Macdonald to incorporate the submission from the department to the inquiry is of course accepted. It is on the public record now, so we would be quite happy for that to be incorporated.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

I seek leave to incorporate the document in Hansard.

Leave granted.

The letter read as follows—

AUSTRALIAN GOVERNMENT : DEPARTMENT OF THE ENVIRONMENT, WATER, HERITAGE AND THE ARTS

The Secretary

Senate Standing Committee on Environment, Communications and the Arts Department of the Senate

Via email: eca.sen@aph.gov.au.

Inquiry into the provisions of the Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008 — additional information

The following forms an addendum to the submission to the above inquiry from the Department of the Environment, Water, Heritage and the Arts and the Great Barrier Reef Marine Park Authority.

The addendum provides further clarification regarding the definition of “fishing” proposed by the Bill and additional information on prosecutions for recreational fishing offences.

Definition of “Fishing”

To be charged for fishing in a prohibited area in the Great Barrier Reef Marine Park, a breach of the Great Barrier Reef Marine Park Zoning Plan 2003 (Zoning Plan) must be established MI the first instance. The definition of fishing in the Great Barrier Reef Marine Park Act 197.5 (GBRMP Act), as proposed to be amended, does not determine what is and is not a breach of the Zoning Plan and therefore an offence. This is determined exclusively by the definition of “fishing” in the Zoning Plan (which is not proposed to be amended) and through application of Criminal Code provisions relating to attempted offences.

The Zoning Plan regulates use of the various zones of the Marine Park. This includes restrictions on “fishing and collecting” in certain zones. The Zoning Plan defines “fishing and collecting” as “taking a plant, animal or marine product”.

The GBRMP Act in its current form, and also as proposed to be amended, makes it an offence to engage in conduct that is prohibited under the Zoning Plan.

The Criminal Code Part 2.4 provides that “attempting” to commit an offence can itself be an offence. In this respect, the Criminal Code notes that, for a person to be guilty of attempting to commit an offence, “the conduct must be more than merely preparatory to the commission of the offence”, and that whether or not this is the case is a matter of fact. It is for the prosecution to establish beyond reasonable doubt that a person attempted to commit an offence. At this point, the definition of fishing in the Act (as proposed to be amended) does not come into play. An offence will have been committed if:

• a person engages in conduct that is “fishing” (within the meaning of the Zoning Plan), in a zone where it is prohibited; or
• a person attempts (as provided for by Part 2.4 of the Criminal Code) to engage in “fishing” (within the meaning of the Zoning Plan) in zones closed to fishing

In the case of only circumstantial evidence, the court is required to draw the inference most favourable to the accused.

This would be an offence of engaging (or attempting to engage) in “prohibited” conduct (Bill Schedule 6, Item 24, 38BA).

It is only once a breach of the Zoning Plan has been established, that the definition of fishing in the Act and Bill, as proposed, is used in the classification of offences for the purposes of determining potential penalties. That is, the prosecution can seek to classify the conduct constituting the offence as “fishing” using a “commercial fishing vessel”. Here, the definitions of “fishing” and “commercial fishing vessel” in the Bill are applied. If these additional elements are proven beyond reasonable doubt, a person can be convicted of an “aggravated offence” (Bill Schedule 6, Item 24, 38GA). If it is not proven, the person is convicted of the “base” offence of engaging (or attempting to engage) in “prohibited” conduct (Bill Schedule 6, Item 24, 38BA).

In other words, the purpose of defining “fishing” in the Act, and reason for its scope, is to classify an offence as “aggravated” only once a breach of the Zoning Plan has already been established.

The definition of “fishing” in the Act does not extend, modify or qualify what can be considered “fishing” for the purposes of determining whether a person has engaged in, or attempted to engage in, conduct that is prohibited under the Zoning Plan. Only the definition in the Zoning Plan and application of the Criminal Code are relevant in this context.

In summary, the Bill includes a definition of “fishing” carried over from the current GBRMP Act, with only one change - “processing, carrying or transhipping of fish that have been taken” has been removed from the definition. The definition in the Act and the Bill as proposed is used in the classification of offences for the purposes of determining potential penalties. The offence currently is, and under the Bill would continue to be, determined by the definition of fishing as described in the Zoning Plan and the application of the Criminal Code.

Recreational Fishing Convictions

Attached is a summary of the facts and sentencing remarks of all persons prosecuted for recreational fishing offences committed in the period 1 July 2004 to 16 December 2006. The summary is a “Comparative Sentencing Schedule” prepared and maintained by the Commonwealth Director of Public Prosecutions (CDPP). It is provided to Magistrates and defendants by the CDPP in the context of a prosecution. Its purpose is to facilitate consistent sentencing by providing Magistrates with information on the penalties imposed in cases of similar circumstance. It is also provided to defendants in the interests of procedural fairness.

Yours sincerely,

Mike Callaghan Deputy Secretary

Progress reported.