Monday, 17 September 2012
Environment Protection and Biodiversity Conservation Amendment (Declared Commercial Fishing Activities) Bill 2012; Second Reading
When we had a brief debate about this bill last week in taking note of answers after question time, I said that this was the worst piece of legislation from a drafting point of view that I had ever seen in 30 years as a legal practitioner and as a senator. I note that the government have made a number of amendments to the bill in its original form, evidently with a view to attempting to meet some of the criticisms that have been made of it and in particular to narrow the circumstances in which the ministerial discretion is exercisable. Nevertheless, although the definition has been narrowed somewhat, the vice remains that this is an extremely poorly drafted piece of legislation. It provides an extraordinary width of arbitrary ministerial power, the like of which I have never seen. Regardless of the policy merits of the issue which my colleagues have addressed, regardless of the history of confusion, hypocrisy and doublespeak that have come from the government which have got us to this point and regardless of the political circumstances which have seen the most pusillanimous backdown to the Greens which is the real reason that this legislation is before us tonight, I want to address the bill from the point of view of the breadth of the arbitrary ministerial power which it confers.
The purpose of the Environment Protection and Biodiversity Conservation Amendment (Declared Commercial Fishing Activities) Bill 2012 is to provide for certain commercial fishing activities to be declared to be unlawful so that engagement in them is prohibited on an interim and then potentially on a more permanent basis. We look to the definition of the activity which the legislation seeks to prohibit and we see that it is defined as a declared commercial fishing activity. Proposed clause 390SC states that a declared fishing activity is a fishing activity that is engaged in for a commercial purpose and to avoid doubt does not include an activity that constitutes recreational fishing, and states:
(2) A fishing activity means an activity that constitutes fishing.
That is very illuminating: a fishing activity is an activity that constitutes fishing and a commercial purpose is a purpose that is commercial. That tells us almost precisely nothing.
But what is particularly invidious about this bill are the criteria on the basis of which the power of the minister to make a declaration are exercisable. If one goes to section 390SD, which would be inserted into the act were this bill to be passed, we read that the minister must not make an interim declaration unless the Minister for Agriculture, Fisheries and Forestry and the Minister for Agriculture, Fisheries and Forestry agree that there is uncertainty about the environmental impacts of the commercial fishing activity. This is, I will concede, a slight improvement on the original form of the bill. In the original form of the bill, the condition for the exercise of the minister's jurisdiction was that there was uncertainty about the social, economic or environmental impacts of the fishing activity. The criteria 'social' and 'economic' have been removed from the bill in its current iteration, so the criterion is now that the minister for fisheries and the minister for the environment agree that there is uncertainty about the environmental impact of the commercial fishing activity. If the ministers agree that there is uncertainty about the environmental impact of the commercial fishing activity, they can prohibit it.
Let me make two points about that definition. First of all, the word 'uncertainty' is not a legal term. It is a term with no legal meaning. It is, so far as my research takes me, a term which appears as the basis for the exercise of a ministerial power in no other Commonwealth statute. So the word 'uncertainty' in this act has the layman's meaning—that is, somebody is uncertain about something, somebody does not understand something, somebody cannot get their mind around something. That is what uncertainty is for the purposes of this bill. Secondly, because the bill actually identifies who must be uncertain—that is, the minister for the environment and the minister for fishing—the test of uncertainty is a subjective test. In other words, it does not matter how clear as day it might be to the ordinary reasonable man or woman in the street; if two ministers are uncertain and they agree they are uncertain, the statutory basis for the jurisdiction to prohibit any commercial fishing activity as defined by the bill exists.
What an extraordinary proposition. We are lectured in this parliament day after day—in particular by the Greens, who propose to support this bill—about the importance of limiting the arbitrary power of the executive government. We are lectured, day after day, about the importance of legislative oversight of the executive. And yet here we have a bill which confers upon a minister the most draconian power—to actually prohibit any commercial fishing activity in Australia—and the only condition upon which the exercise of that power depends is that two ministers agree they are uncertain about something. Just think about it, Madam Acting Deputy President. In order to confer upon themselves this draconian, vast, arbitrary power, two ministers—two Labor Party politicians—have to decide they are uncertain about something. They have to decide they do not understand something. They have to decide, 'Well, we're ignorant about this.' They have to decide, 'Well, it's a bit too much for us'—and thereby they satisfy the statutory test.
As I said last week, this must bill must be the crescendo of the Rudd-Gillard government. The basis upon which ministers are vested with a vast statutory power is that they do not understand something. It is no secret to anyone in this country that the range of things that ministers in the Rudd and Gillard government have got wrong—from pink batts to school halls to the live export trade to any one of a multitude of individual mistakes and miscarriages of public policy—
Senator Edwards interjecting—
GroceryWatch—thank you, Senator Edwards—Fuelwatch—the list goes on and on and on. The list of mistakes, of things that ministers of this government have failed to understand, is almost endless. It is one thing to say, 'Your ministers have made a mistake.' It is one thing to say that a government is too incompetent, that it is too uncomprehending, that the intellectual powers of its ministers are so poor that they cannot understand the public policy implications of their decisions.
That is bad enough. The bizarre aspect of this bill is that it says that the incomprehension, the ignorance, the stupidity, the uncertainty, of a minister is itself the basis of their capacity to exercise a ministerial power. This bill says: the more stupid the minister is, the more uncertain he or she is, the less ability they have to comprehend what their advisers are telling them, the more powerful they are. This is Labor Party nirvana. This is Labor Party heaven.
We know—if I may say so, with all due respect, Madam Acting Deputy President Crossin—that there are very few ministers in this government who are very intellectually gifted. There are many ministers in this Labor Party government who, to be blunt, are very stupid. But the effect of this bill is to say: the more stupid you are, the more powerful you are; the more stupid you are, the wider your ministerial power; and your inability to understand something is itself the very jurisdictional ground for the exercise of that power. This is, as I said a moment ago, Labor Party heaven.
The opposition of course opposes this bill. Most of my coalition colleagues—and I see my friend Senator Ian Macdonald in the chamber; he is a a former fisheries minister who, I dare say, understands this area better than anybody else in the Senate—will address the public policy merits of this issue. Most of them will address the devastation this will cause to the commercial fishing industry in country. But I as a mere lawyer want to contribute to this debate to make a different point. I want to draw attention to the towering absurdity of saying that the basis on which a minister's power sits is how stupid they are; absurd, but nevertheless, a fitting testament to this Labor government.