Ursula Stephens (NSW, Australian Labor Party, Parliamentary Secretary Assisting the Prime Minister for Social Inclusion) Share this | Hansard source

In summing up this important debate on the Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008, I thank the senators who have contributed to the debate and raised the issues that are of concern to them. We know, of course, that the bill makes long overdue and much-needed changes, as Senator Siewert so clearly said. It puts in place a robust, comprehensive regulatory framework for the Great Barrier Reef, fit for meeting the challenges of the future, we believe. The bill demonstrates the Australian government’s commitment to securing the future of the Great Barrier Reef, undisputedly one of the nation’s and the world’s most important natural assets.

In summing up, I will address some comments made in the contributions to the debate and the amendments that have been proposed by the opposition. Senator Macdonald in his contribution noted:

All Australians ... are custodians of the reef and we have to play our part in ensuring that it is properly protected.

Yet the opposition is refusing to play its part. It is failing to support these important changes to enhance protection of the Great Barrier Reef. These are the changes which the opposition has been at pains to point out are being made at its initiative as an outcome of its 2006 review of the Great Barrier Reef Marine Park Act 1975. These changes are necessary to ensure that the 2004 zoning for the marine park, which the then coalition government put in place and provided over $200 million in structural adjustment assistance to support, can be effectively administered and enforced. These are more than just lines on a map. These are the changes that in the recent debate in the House the opposition indicated its strong support for. Yet now it is the opposition that is seeking to stymie the progress of the bill by raising questionable objections.

The amendments sought by the opposition would overturn the convictions of all people caught fishing illegally in the Great Barrier Reef Marine Park in the period from 1 July 2004 to 14 December 2006—both recreational fishers and commercial fishers. One version of the opposition’s amendments would, if passed, result in the legislature granting pardons, currently the prerogative of the Governor-General. In moving this way, the opposition attacks the separation of powers that underpins our constitutional democracy, blurring the lines between parliamentary and executive powers and the independence of the judiciary, and setting of course what would be a very dangerous precedent.

The basis for the proposed amendments is the fact that an infringement notice scheme was introduced in December 2006. Persons caught fishing illegally in the marine park may now be issued an infringement notice. If issued with a notice, a person can pay a fine and avoid criminal prosecution. The opposition claims that persons convicted prior to the infringement notice scheme have somehow been treated inequitably.

The issuing of an infringement notice is discretionary. It remains the case that fishing in areas of the marine park closed to fishing is a criminal offence. Illegal fishers can still be prosecuted or issued a warning, and the overwhelming majority are dealt with by way of a warning. The offence has not been downgraded or decriminalised—an additional, discretionary enforcement mechanism has been introduced. To that extent, Senator Boswell was not correct when he said in the Senate on 27 August:

We were successful in providing in the legislation that, from a point in time, no further convictions would carry a criminal penalty.

Senator Macdonald made a similar comment, which was also not correct.

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. This 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 the offence is committed.

The bill currently before the Senate introduces an even broader range of enforcement options. In the future a breach of the Great Barrier Reef Marine Park Act could be enforced through criminal prosecution, a civil penalty, a remediation order, an enforceable undertaking or direction, an infringement notice or a warning. Applying the argument put forward by the opposition senators, following passage of this bill the government would be expected to revisit every previous enforcement action dating back to the inception of the act in 1975 and would need to consider how they would be dealt with in the light of the new range of enforcement options available to those administering the legislation. This clearly is not a sensible outcome, it is not good policy and it is not something anyone would want set as a precedent.

Applying this precedent to drug offences, for example, many states have introduced the option of infringement notices for certain classes of marijuana possession. Is the opposition suggesting that governments pardon the many thousands of people convicted for drug possession prior to these changes? I note also that, over time, decriminalisation of drug offences has applied to a progressively smaller range of offences. Applying the precedent that the opposition is looking to set, governments would be expected to reinstate some of the convictions that it had previously pardoned. These are the sorts of consequences that flow from the opposition’s proposed amendments, which demonstrate quite clearly that the proposed amendments are poor policy at best and dangerous at worst.

The government does not believe there is an equity issue here. In fact, the government is concerned about the equity implications of the proposed amendments. The opposition’s preferred amendment would actually result in people who under the current arrangements have paid an infringement notice penalty being treated inequitably to those convicted. If the convicted persons were pardoned, the government would be required to repay all fines. These people would get off without any penalty while others have willingly paid their $1,100 infringement notice penalty. Even if the fines somehow were not repaid, the majority of recreational fishers convicted were ordered to pay less than $1,100 and some were actually ordered to pay fines as low as $200. Senator Macdonald and Senator Boswell, simply removing the conviction or treating it as spent would result in the majority of people caught illegally fishing before the introduction of the infringement notices scheme being treated more favourably than those who have honestly paid the $1,100 infringement notice penalty.