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

The government does not support the amendment moved by Senator Macdonald and Senator Boswell. As we have heard, the issue was considered in detail during the inquiry into the bill. It was the committee’s view that it was not appropriate for parliament to quash the convictions in question through amendments to the bill currently before the chamber.

In reaching this conclusion, the committee made a number of points. Firstly, the majority of recreational fishers apprehended illegally fishing were dealt with by way of a warning—280 out of the 401 in the period in question. The Great Barrier Reef Marine Park Authority’s key approach to compliance is education. Significant efforts were and continue to be made to ensure that people are aware of the marine park zoning plan. Secondly, the decision to prosecute was made by the independent Commonwealth Director of Public Prosecutions based on the prosecutions policy of the Commonwealth. This policy seeks to ensure consistency in the decision to prosecute and that prosecutions are in the public interest. Thirdly, it is open to a court under the Crimes Act 1914 to discharge a person found to have committed an offence without entering a conviction. This option was exercised on a number of occasions.

Fourthly, any action to legislatively quash convictions would set a concerning precedent. I am sure Senator Brandis would have something to say about precedent setting by legislatively quashing convictions. Persons convicted were prosecuted in accordance with the law at the time, and their offence was proven in a court of law. The law was subsequently changed, and behaviour dealt with by way of a warning or prosecution can now be dealt with by way of a warning, an infringement notice or prosecution. An additional intermediate enforcement option was introduced, and that was supported by Labor in opposition.

The introduction of new enforcement mechanisms such as infringement notice schemes is quite common as governments seek innovative, flexible and efficient ways of securing compliance with the law. This often results in particular forms of offence being enforced through different means before and after regulatory reforms. It is consistent with the fundamental principle of our criminal justice system that persons committing an offence should be dealt with in accordance with the law that exists at the time that the offence is committed. The circumstance is not unique to regulation of the Great Barrier Reef, and neither the government nor the committee is aware of any examples of similar reforms in other areas that involve the revisiting of past enforcement action.

Finally, the difficulties in framing a legislative provision to quash or spend convictions was noted. For example, among recreational fishers who were convicted were people who admitted to knowing that they were inside an area closed to fishing and others who deliberately sought to obscure vessel registration numbers to avoid apprehension. Those people knew they were guilty when they were apprehended. Those people will have their convictions spent or quashed as a result of this amendment. It is an enormous precedent that this chamber looks like it is going set today.

Further, both recreational and commercial fishers were convicted under the same provision of the act. So any action to quash or spend convictions for recreational fishing would inevitably also apply to the conviction of commercial fishers, even though the infringement notices are not now used in relation to such offences. There have never been any concerns raised about the conviction of commercial fishers who have broken the law.

The amendment would apply to convicted persons fined less than $5,000. Presumably, this is an attempt to deal with the difficulties in framing a provision—difficulties that were identified by the committee. It is unclear, however, why the figure of $5,000 has been chosen. The inquiry into the bill was given very clear evidence that the maximum fine received by a recreational fisher was $2,250. I think that is a very important point that needs some clarity. Why choose $5,000, unless you are trying to capture a group of people who are commercial fishers and who have been convicted under this legislation?

During the period in question, from 1 July 2004 to 16 December 2006, there were 23 commercial fishing offences committed for which a conviction was entered. Thirteen of those 23 received a fine of less than $5,000. They would all be given a reprieve under this amendment. The proposition that the offence committed by these people is not serious is simply not true. The majority of the 13 people fined less than $5,000 were fishing from dories. These are small boats that work in conjunction with the mother vessel. So the scale of the offence might be small but the issue is a serious one. They are professional fishermen who should know and play by the rules. The fact is that there are strong incentives not to play by the rules. Scientific studies have shown that the abundance of an average size fish such as coral trout is generally much higher on reefs in marine park no-take zones than on reefs open to fishing. Studies have also shown that the difference in legal size coral trout catch rates can be as much as 12 per hour in a zone closed to fishing compared with five per hour in an area open to fishing.

These are serious offences and it is important that there is effective deterrence. Unfortunately, if this amendment is passed, 13 out of 23 commercial fishers will have convictions quashed when, in our view, they have knowingly broken the law. More generally, the broader implication of the amendment is that the existing Commonwealth spent conviction scheme will be overridden. The normal operation of the scheme means that these convictions would be spent after 10 years of good behaviour. Earlier we referred to other ways and methods for convictions to be spent which would not set the precedent which this proposal will set if carried. The amendment would undermine the coherence and credibility of the spent conviction scheme to give these offences special treatment without any justifiable rationale for doing so. In summary, this is very poor policy that would be poorly implemented. For these reasons, the government does not support the amendment.