Judith Troeth (Victoria, Liberal Party) Share this | Link to this | Hansard source

The committee is considering the Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008, as amended, and opposition amendments (1) to (3) on sheet 5600, moved by Senator Joyce. The question is that the amendments be agreed to.

Question negatived.

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

I move government amendment (1) on sheet RE380:

(1)    Schedule 6, item 9, page 114 (line 23) to page 115 (line 4), omit the item, substitute:

9  Subsection 3(1)

Insert:

fishing means any of the following:

             (a)    taking fish;

             (b)    attempting to take fish;

             (c)    engaging in any activity (including searching for fish, using fishing apparatus and using fish aggregating devices) in connection with taking, or attempting to take, fish.

As in the earlier debate, when we were debating these two elements in a cognate way, I put that we would be moving this definition of fishing. As I indicated, this comes as a result of the inquiry into the bill by the relevant Senate committee. I thank the members of the committee for their advice and for the report we received.

First, I need to make something very clear. Senator Joyce has been saying that the reason we have moved this amendment is that the previous definition was onerous. That is not correct. It is simply being moved as a point of clarification. It is not at all to do with the view that Senator Joyce has put to us. It also comes as a result of the contribution you made earlier, Senator Joyce, when you questioned whether it refers to the zoning plan or to the act. That is a very important point, and I think I answered that in an earlier contribution—at least I hope I did.

The amendments we have moved are relevant only to commercial operations. I do encourage you to look at paragraph (c) of the amendment that says:

engaging in any activity (including searching for fish, using fishing apparatus and using fish aggregating devices) in connection with …

and that is the most important part—

… in connection with taking, or attempting to take, fish.

You should not be concerned about the import of this definition. I think it is a good addition in terms of clarification to the overall operation of the act, if adopted. I commend the amendment to the Senate.

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

Just for clarification, the requisite part of the relationship described as ‘fishing’ is from the Great Barrier Reef Marine Park Authority Act 1975. That is what is being relied on, not the zoning section.

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

The amendment does change the definition in the act, not in the zoning plan. I hope that clarifies it for you.

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

I understand that. I am just saying that, with the enforcement of a charge of fishing where you are not supposed to fish, they will therefore be referring back to your breach of a provision in the zoning plan or a breach of a provision in the Great Barrier Reef Marine Park Authority Act 1975.

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

If a person is fishing in a green zone and the enforcement officer is of the view that that person is in the wrong place, they will report it to the DPP. The DPP will make an assessment and pursue charges on the basis, initially, of the zoning plan. Subsequent to that, if the person is guilty of fishing in a green zone—and I use that term in the broadest sense because of the infringement notice opportunity, whether the person has a previous record and a whole range of things to be put into that if the person has been found to be guilty—then there is an opportunity, if the person is deemed to be fishing in a commercial nature, for this definition to be instigated.

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

Madam Temporary Chairman, have we dealt with Senator Joyce’s amendment?

Judith Troeth (Victoria, Liberal Party) Share this | Link to this | Hansard source

We have dealt with that amendment, Senator Macdonald. That was dealt with just before you arrived in the chamber.

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

I must say, Madam Temporary Chairman, I am most unhappy about that. It was my understanding that this bill was not coming on for a while and that there were certain things to be done. Apparently for some reason it slipped through very, very quickly. Senator Joyce, Senator Boswell and I, who clearly have major parts in this debate, are rather disappointed that the minister did not do us the courtesy of delaying things.

The Temporary Chairman:

With respect, Senator Macdonald, it was let go through by your colleagues and the committee assumed that there were no other speakers on the matter. If you seek leave of the committee we can return to that matter, if you wish.

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

As it turns out I think it was Senator Joyce’s amendment that we were discussing. As soon as we saw this amendment come on we all rushed down but by then the matter had been put and I am rather disappointed that that happened. As I understand it Senator Xenophon indicated that he would not be supporting Senator Joyce’s amendment so it would have been defeated with the Labor Party, the Greens and Senator Xenophon not supporting it. I guess we do not need to recommit it and I do not think we were going to divide in any case. I am not sure whether Senator Joyce wants to say something about that matter, although perhaps he just has. If we are now dealing—

The Temporary Chairman:

We are now dealing with government amendment (1) on sheet RE380.

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

Thank you, Madam Temporary Chairman. The opposition have not spoken on that as far as I know. I think Senator Joyce thought that his last speech was on his amendment, but I do not want to attribute things to Senator Joyce as he can do that himself. Certainly on behalf of the opposition I want to indicate that, with Senator Joyce’s amendment having been defeated, we now come to the government’s amendment on the definition of ‘fishing’. Whilst it is not quite what we wanted, it is better than the original definition in the bill. It was raised in the committee report into the bill. Even the Labor Party members on the committee indicated in their majority report that the definition did require looking at as it was confusing, and I thank Senator Joyce, particularly, and Senator Boswell for raising debate on the issue of the definition. The government’s amendment addresses some of the concerns that opposition speakers had and it is better than it was. So the opposition will be supporting the government’s amendment on the definition.

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

For the record, obviously I would have supported my own amendment. I was at an Economics Committee hearing on the top floor and even though I ran, I was not here on time. I believe it was a superior amendment; nonetheless it has failed. For the record, and so that people understand, quite obviously I would have been supported. I imagine that Senator Boswell and others would also have been in support of it. This amendment is certainly better than what the government is proposing now, and I concur with Senator Macdonald that it is certainly a step in the right direction for what was formerly section 9, I think—I do not have it in front of me—in the original act. Regardless of the motivations that have been described by the minister, I am certain that the overarching and overproscriptive capacity of the original act to reach into areas as a form of law, which I do not see reflected in other forms of law in Australia, and the whole intention that was there before—that you could be charged not so much for what you did but for what you thought—is an onerous form of law that we should not be passing in this chamber. So I see this not as a complete fix of that problem but certainly a step in the right direction. I hope, for future reference, regardless of what the act is that we are talking about, we do not revert to pieces of legislation that make criminals out of the way people think. The National Party will be in support of this amendment, not because it is right but because it is far better than what was completely wrong.

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

I thank senators for indicating that they will support this government amendment, but I just want to put on the record my views of what happened prior to this, because I would not like the Hansard to reflect that anything untoward has occurred in the taking of the previous vote. When the committee opened there were no speakers in the chamber on Senator Joyce’s amendment. The chair quite rightly called for a vote to be taken. The chair at that time called the vote for the ayes. Given that we know how people variously around the chamber are going to vote, I then called for a division on the basis that the noes would have it. Opposition senators indicated that a division was not required and, therefore, the division was called off. I would hate others to think that anything untoward occurred in the chamber, given the sensitivity of this issue, particularly in North Queensland. I hope that assists those senators who were not in the chamber because of other committees. I am not at all critical of the fact that we all have other work to do as well as appear in the chamber. I thank senators for their support.

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

I do not want to carry this on, and I am not quite sure what happened. I am not quite sure who indicated that we did not want to divide.

The Temporary Chairman:

Senator Brandis, who was present in the chamber at that point, indicated that a division was not required.

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

Thank you, Madam Chair. I am somewhat surprised by that. I did hear the bells start to ring as I raced down from my office, thinking that perhaps someone had called a quorum. However, it is not worth continuing on. As I say, we were beaten fairly and squarely, as well as by the bell. I thank Senator McLucas and you, Madam Chair, for making it clear.

The Temporary Chairman:

The question is that government amendment (1) on sheet RE380 be agreed to.

Question agreed to.

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

by leave—I move:

(1)    Schedule 6, page 115 (after line 4), after item 9, insert:

9A  Subsection 3(1)

Insert:

geological storage operations means:

             (a)    operations to inject and store a gas substance in part of a geological formation; or

             (b)    operations preparing for or incidental to operations mentioned in paragraph (a).

(2)    Schedule 6, item 24, page 117 (line 28), omit “or drilling”, substitute “or geological storage operations”.

(3)    Schedule 6, item 24, page 118 (line 1), after “operations”, insert “or geological storage operations”.

(4)    Schedule 6, item 24, page 118 (line 27), omit “or drilling”, substitute “or geological storage operations”.

(5)    Schedule 6, item 24, page 118 (line 29), after “operations”, insert “or geological storage operations”.

These amendments will establish a prohibition on the geological storage of greenhouse gases in the Great Barrier Reef. As senators know, mining and drilling is prohibited in the Great Barrier Reef region. This prohibition was established long before geological storage of greenhouse gases was contemplated, as we know from the debate we had last night. The Australian government sees greenhouse gas geological storage as a critical technology in reducing greenhouse gas emissions. However, it has no intention of allowing it in the Great Barrier Reef where drilling operations are already prohibited. The amendment provides clarity and certainty regarding the government’s position and is also consistent with the overarching object of the bill currently before the Senate, which is to establish a modern, future focused regulatory framework for the Great Barrier Reef.

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

I would like to indicate from the Greens’ perspective that we will be supporting this amendment.

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

I indicated earlier that the coalition will be supporting this amendment. In saying that, I want to congratulate Mr Peter Lindsay, the Liberal member for Herbert, for his campaign to ensure that this particular amendment was included in the bill. Way back on 25 June 2008, when the matter was dealt with in the House of Representatives, Mr Lindsay raised the issue of carbon sequestration underneath the Great Barrier Reef. He said that the bill that was presented to parliament did not rule out allowing carbon sequestration under the marine park. As Mr Lindsay said:

I am very pleased that the government has since said, ‘No, it’s not our intention to allow that.’

Mr Lindsay had been publicly campaigning for that. He indicated that he would move an amendment to the bill, which I am sure that the government would support, and he referred to an article in the Australian that included a map showing that there could be carbon sequestration under the Great Barrier Reef Marine Park. I am pleased that the government has introduced this amendment in the Senate to allay the fears of Mr Lindsay and other members of the coalition, who are concerned that at all costs the Great Barrier Reef be protected and looked after. It is one of the great natural icons of the world.

As well as being a great natural asset and something that has brought pleasure to many people over eons, it is also, as I mentioned in speaking to an earlier amendment, a great revenue earner for Australia. Marine tourism in the Great Barrier Reef region is worth $5.1 billion annually and employs some 54,000 people. That information was provided by Access Economics, which did a study in the area just recently. A study commissioned in 2001 by tourism organisations, including Tourism Queensland, and the Cairns City Council and conducted by Hassall & Associates showed that the value of the marine tourism industry in the Cairns-Port Douglas area alone was some $736 million in the previous year. A further study by Hassall & Associates commissioned by Tourism Queensland showed that the marine tourism industry in 2001 paid the following major taxes: $17.5 million in income tax; some $8 million in the environmental management charge; and some $19.9 million in company tax, making a total of $215 million in revenue for the Commonwealth, which then pays out only about $30 million to GBRMPA. Not only is the Great Barrier Reef a great natural asset and great for tourism and employment; it is a real cash cow for the government. The Queensland government receives approximately $124 million of federal revenue through the GST and collects another $19 million in other taxes paid by the marine tourism industry. According to my figures, the Queensland government spends only about $23 million on the Great Barrier Reef.

Through the payment of the environmental management charge, industry contributes some $8 million per year to the GBRMPA budget, of which $1.2 million was payed to the CRC Reef Research Centre. There are over two million visitors to the Great Barrier Reef each year, and research shows that the Great Barrier Reef is the most significant attraction for tourism within the North Queensland region, with about 80 per cent of tourists visiting the Great Barrier Reef at least once. Quite clearly this is a great natural asset; it is also a great commercial asset for Australia, for Australians and for the Queensland government. That is why we have to protect it at all costs, and that is why the opposition will be supporting the government’s amendment to an issue that was rightly raised by Mr Lindsay some time ago.

Question agreed to.

I, and also on behalf of Senator Boswell, move opposition amendment (1) on sheet 5550 revised:

(1)    Schedule 6, item 24, page 126 (after line 13), after Division 3, insert:

        (1)    Despite any other Commonwealth law or any State law or Territory law, if a person was convicted for an offence under section 38CA of the Great Barrier Reef Marine Park Act 1975:

             (a)    that occurred during the period 1 July 2004 to 14 December 2006; and

             (b)    that did not attract a monetary penalty exceeding $5,000;

that conviction is for all purposes to be treated as a spent conviction under Part VIIC of the Crimes Act 1914.

        (2)    For the avoidance of doubt, a conviction referred to in subsection (1) is to be treated as a spent conviction whether or not the waiting period for the offence under Part VIIC of the Crimes Act 1914 has ended.

        (3)    Despite Division 3 of Part VIIC of the Crimes Act 1914, the exclusions provided by Division 6 of Part VIIC of the Crimes Act 1914 do not apply in relation to a conviction referred to in subsection (1).

This amendment deals with a matter that has been of great concern to the coalition for a number of years now. As I indicated this morning—and I will not repeat a lot of what I said this morning—the former coalition government legislated in relation to green zones. The penalties for fishing in the green zones were very severe. Between 1 July 2004 and 14 December 2006, there were a large number of convictions which imposed very heavy fines but also gave those convicted a criminal record. This was never intended; it was an unintended consequence. Senator Boswell and I gave examples of that this morning and of the impact that criminal records have had on ordinary Australians who liked to go out fishing and who made a mistake and went into the wrong zone. As a result of a lot of good work done by Senator Boswell and others, including me, this was highlighted. The previous government recognised that this was an unintended consequence and promised before the last election that, if returned, the coalition would introduce legislation to legislatively overturn the criminal records of people convicted during the period 1 July 2004 to 14 December 2006.

On 14 December 2006, the previous government, understanding the problems, changed the arrangements so that, from that date onwards, people fishing in the green zones could be served with an infringement notice—an on-the-spot fine, almost—instead of being taken to court and, upon conviction, having a criminal record. With the infringement notices, there are still very substantial fines but no conviction is on the person’s record. What we want to do with this amendment before the chair is to put those who were convicted between 1 July 2004 and 14 December 2006 in the same position as they would have been had they been given an infringement notice after 14 December 2006.

This has been the subject of a lot of anxiety by those convicted, for the reasons that Senator Boswell and I mentioned earlier today. This amendment, if it is passed—and I am delighted to hear that both Senator Fielding and Senator Xenophon have indicated that they will be supporting the amendment, which means that it will pass—will put to an end this very unhappy period in relation to the Great Barrier Reef. I want to emphasise again that the Labor Party when in opposition, before the last election, also indicated that they would be supporting this form of activity. The then shadow spokesperson in the area of agriculture, fisheries and forestry, Senator O’Brien, quite clearly said in response to a newspaper inquiry that this needed to be a bipartisan approach and he gave every indication that the Labor Party would be supporting it.

Initially we looked at a pardon, but it became clear to us on investigation that a pardon would be difficult to do, as it would create an unfortunate precedent and in fact would be a unique action in Australian legislative history. So, on further reflection, the coalition decided to propose that these convictions between 1 July 2004 and 14 December 2006 be treated as spent convictions under part VIIC of the Crimes Act 1914. The Crimes Act actually has an automatic spending of convictions after a period of 10 years. What this amendment does for these 100 or so people who now have this criminal record is bring forward the ‘spending’ of their convictions. So, to all intents and purposes, if this amendment is adopted, those who were fined in that period that we talk about will, of course, still pay the fine—there will still be that very substantial penalty—but they will not have a conviction on their personal record for what amounted to, in most instances, fairly innocent fishing breaches.

It is important to understand that that new regime was a huge step forward by the coalition—from about five per cent reserved away in green zones, it went up to something like 30 or 32 per cent in green zones. So there was a major rearrangement of what people had done on the Great Barrier Reef for many, many years. There was a lot of anxiety about it and a lot of anger and concern at the time the green zones were introduced—however, it went ahead. As a result, people who fished in a certain area where they had been fishing for decades suddenly found themselves in breach of the law and, as a result, faced very substantial penalties and this criminal conviction—which was not intended. What we are doing with this amendment is using the Crimes Act and the provision about spent convictions to say that these convictions in that period are deemed to be treated as spent convictions under the Crimes Act. And the balance of the amendment is to clarify what it refers to.

I am pleased that there has been an indication that there will be majority support for this amendment. I certainly hope that the Labor Party will honour its election commitment and also support the amendment. I went to the Labor Party at the committee hearings and I had written to the minister explaining the problem. If there was a better way of doing this, I was hoping that the government might come forward and say: ‘We understand what you want to do. We agree, as we agreed before the election, that this situation should not continue, and this is a way we can get rid of it.’ But, whilst I got tacit support, one might say, from officials at estimates committee hearings, I could never get their political masters to actually come to the party. I am hoping that, by now, the government will accept that this is an appropriate amendment. It is a very fair amendment and it rights a wrong—an unintended consequence of very strong legislation to protect the Great Barrier Reef.

I would certainly urge all senators to support this amendment. It does not create any undue precedent—which I see the government raised in their majority committee report. That is a facetious argument. It will right a wrong. It will be a great day, I might say, for those who are impacted upon by this and it will clean their slates in a way that will bring closure to this particular incident in Australia’s history. So I urge senators to support this amendment.

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

I am not going to go into a great deal of detail, as Senator Macdonald has covered the amendment very adequately. I do, however, want to go on the record because this amendment is in both our names. I want to thank him for his efforts in getting this sorted out. In a previous life Senator Macdonald was a solicitor. He has found a way through this and, in consequence, we have been able to put this amendment up. It is a great day for those people who have had a conviction registered against them. People just could not believe that they had been criminally charged over fishing in a green zone when they did not recognise that they were in such a zone. I went through that this morning and I do not intend to go through it again. I am very pleased, however, that there are a lot of people tonight—324 of them, actually—who will not have to confess that they have a criminal conviction when they go to the police, to an insurance company, to get a passport or to take some other action. It will be a great relief to them to be able to go and apply for another job or to do certain other things that require a clean slate. This will, hopefully, go through today and they will have a clean slate.

I can not understand why, after Senator O’Brien went on the record, there is a change in the attitude of the government. I do not intend to go on about this because I want to clear up this issue as soon as possible, but I do want to put on the record again what Senator O’Brien said in the Townsville Bulletin on 19 October:

Shadow fisheries minister Kerry O’Brien said the government was holding fishermen’s votes to ransom and yesterday’s announcement was beyond the pale. ‘Frankly, it is an indictment on the government—

that’s the Howard government—

that they are prepared to play politics about these 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?’ Mr O’Brien said an elected Labor government was also sympathetic to the overturning of the criminal record of 324 fishermen convicted for defence. ‘This is about correcting the initial mistake and we would take the bipartisan position on that.’ he said.

There seems, on the part of the government, to now be a complete reversal of Senator O’Brien’s commitment. Be that as it may, I would like to go on the record and thank a gentleman called Wayne Bayne, who carried a lot of the responsibility for organising the evidence given to the committee. I also thank Senator Ian Macdonald for finding a way through this legal maze and coming up with an answer that will technically remove criminal convictions.

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

The Greens will not be supporting this amendment. We do appreciate the fact that some recreational fishers who were convicted during this period will potentially not now have a criminal conviction. However, during the briefing that we received on this, the department told us about the approach that was being taken to enforcement at the time. They reminded those of us who were there that there was a strong focus and emphasis on education and that warnings were the primary approach. They told us that when it was first introduced there was an informal amnesty and that the introduction of the approach was phased in. Of the people that were prosecuted, a lot of them had been previously warned. The prosecution approach was only taken when there appeared to be clear knowledge, culpability and/or admission. There were also over-the-bag limits and undersized fish. I am sure that there were people who genuinely did not know that they were in the wrong place. However, I think there is a little reinventing of history going on here. It appears that everybody did not know what they were doing when they were actually fishing. We have heard the story of the tinny, the grandfather and the grandchild and, as I said, I am sure that there were a number of cases like that. I am also sure that a lot of the people that were caught actually did know what they were doing. It is also a fact that fishing contrary to a zoning plan still has the potential for a criminal conviction.

We do note that the amendment limits the spent convictions to those with convictions which occurred to a monetary penalty of less than $5,000. However, we still do not support this amendment. We believe it is inappropriate to set a precedent for deeming criminal convictions as spent when the convictions were in line with the law at the time. There is a legislative scheme for spent convictions in the Crimes Act; one that we are concerned should not be undermined. We are also concerned that while the latest version of the amendment—we do recognise there was a series of amendments here—limits the spent convictions to those with a penalty of less than $5,000, there is still the possibility of persons who did, willingly and knowingly, breach the law receiving a spent conviction. Such a threshold would also take in convictions for commercial fishing related offences. The department’s submission to the Senate inquiry indicated there were 23 convictions for commercial fishing related offences in that period and that a variety of fines had been awarded for commercial related offences, ranging from $1,500 to $40,000. We are particularly concerned that those commercial fishing related offences would be caught up in this. Those commercial fishers should have known full well that they were breaching the law.

We have often debated fishing related offences in this chamber. The last response from the government on this issue was that provisions are in place whereby those who have been caught up in this unknowingly could put a good argument to have their convictions dealt with. It is an unfortunate situation, and I do feel for those people who were caught up in this area, who now have a criminal conviction but who could potentially no longer have one. I remind the chamber that it remains a criminal conviction in some circumstances and that we do not believe that this is an appropriate way to deal with this unfortunate circumstance. We support the approach that the government outlined earlier to this place whereby people who have these convictions can take steps to have their conviction spent. We are concerned with the precedent that this amendment would set.

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

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

I am anxious to bring this matter to a vote today. It has been going on for far too long. It started its passage through the parliament in June. I do not want to carry on with the debate. Suffice it to say—

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

Senator McLucas interjecting—

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

Thank you for your legal advice, Senator McLucas.

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

I’m not a lawyer.

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

Then perhaps you should confine your remarks to something that you know something about.

Judith Troeth (Victoria, Liberal Party) Share this | Link to this | Hansard source

Order! Senator Macdonald!

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

Madam Chair, is there some problem with what I am saying?

The Temporary Chairman:

No, but I think you should confine your remarks to the amendment under discussion.

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

I was responding to an interjection that was unlawfully given by the minister. It was a nasty interjection, I might say. It is not that I take offence at these things, but the pot should not be calling the kettle black. I simply want to put on record that I disagree with most of the red herrings Senator McLucas has raised. If time permitted, we would go through those red herrings one by one and dismiss them. Suffice it to say that the fines that will be incurred stand. They are very substantial penalties. What we are doing is removing a conviction that was an unintended consequence of the legislation previously introduced. I again commend the amendment to the parliament.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.