Wednesday, 27 August 2008
- That the Senate:
- notes that:
- 4 years ago more than 100 fishermen in Queensland had criminal convictions recorded against them and were each fined $2,500 for innocently dropping a fishing line in water which is part of the Great Barrier Reef Marine Park, and
- 2 years ago the Federal Government downgraded the offence to an infringement with a $1,100 fine and no criminal conviction, however, the fishermen still have a criminal conviction recorded against their name; and
- calls on the Federal Government to fix this anomaly by making sure these fishermen are given a pardon and do not have the permanent stain of a criminal record to their names.
by leave—I will try to keep it as short as I can. The government does not support this motion. Senator Fielding is correct that on 14 December 2006 it became possible to issue infringement notices in relation to certain recreational fishing offences in the marine park. However, 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 with a warning.
Since the introduction of the infringement notice scheme in July 2004, when the current zoning plan took effect, 116 recreational fishers have been convicted of fishing illegally in the marine park. The overwhelming majority of people caught illegally fishing, around 400, have been let off with a warning. Prosecution was then and is now only pursued in appropriate circumstances—there are a range of circumstances that could involve that eventuality. The 116 people convicted were ordered by the court to pay a variety of penalties depending on the circumstances of the case. Some penalties that have been issued were as low as $200. The majority of people received a penalty of less than $1,100, which is the current infringement notice penalty.
The introduction of the infringement notice scheme was designed to increase flexibility in enforcement. The offence has not been downgraded; an additional enforcement option has been established. The introduction of new enforcement mechanisms such as the infringement notice scheme is quite common as the government seeks innovative, flexible and efficient ways of securing compliance with the law. This often results in particular forms of offences being enforced through different means before and after regulatory reforms. This is consistent with a 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.
This circumstance is not unique to regulation of the Great Barrier Reef and the government is not aware of any examples of similar reforms in other areas that involve the revisiting of past enforcement action. It is open to people to apply to the Attorney-General for a pardon. The decision rests with the Attorney-General and I understand pardons have only been granted in limited circumstances. I understand Senator Macdonald has also been assisting people who wish to apply for a pardon including by providing a standard form letter. I am told that to date only five people have applied. I also note that under the spent convictions scheme established by the Crimes Act 1914 convictions are spent—that is, they cannot be used as a basis for discrimination—after a period of 10 years provided a person has not re-offended in the interim. I thank the Senate.
by leave—I would also like to note that this is an issue that was noted prior to this motion and circulated widely in a media release the other day at 12 o’clock. This is an issue that has been in discussion within the coalition and concerns have been noted publicly and otherwise by Senator Macdonald and Senator Boswell. Later on we will look at a prospective committee to be formed which will investigate these and other issues in which there will be a strong involvement from coalition senators to try to resolve some of the deficiencies that have been made apparent. I want to clearly put on the record the coalition’s strong concern on this issue and our strong and diligent work over a long period of time in trying to correct these deficiencies.
by leave—I only partly heard what Senator Ludwig mentioned, but I can confirm what Senator Joyce has mentioned—that is, that the coalition has already distributed an amendment to the Great Barrier Reef act calling upon those convictions to be dealt with as spent convictions under the Crimes Act. When that amendment comes before this chamber, it will enable senators to require that the convictions recorded no longer remain on the record. It is a fairly complex matter. It is the only thing that, I am told, can be reasonably done at law if the government refuses to give pardons as we were hoping it would.
I raised this matter at some length during the May estimates committee hearings with the Minister representing the Minister for the Environment, Heritage and the Arts. I received a very useful response from the Secretary of the Department of the Environment, Water, Heritage and the Arts indicating that there would be no impediment to the government’s administration of the act if pardons were to be given or if those previous convictions were to be wiped off the slate. Indeed, new arrangements now provide that, for similar offences for which these people were originally convicted, the penalty is simply an on-the-spot ticket without any recording of a criminal conviction. The recording of a criminal conviction prevents many of those who have these convictions from getting a visa to enter the United States.
Prior to the election Senator Kerry O’Brien—who I see is fortuitously sitting in the chamber now—made a commitment on behalf of the then opposition that, if the Labor Party were elected, they would follow the Howard government’s commitment to introduce legislation to negate the impact of these convictions. So the amendment to the bill which the coalition will be moving when it comes before the chamber will give Senator O’Brien, all members of the Labor Party and, indeed, all senators in the chamber the opportunity of putting into effect the commitment made by the Howard government before the last election—a commitment mirrored by the Labor Party—to remove from the record the convictions of those who had had them recorded.
I mentioned that, in estimates in May, I raised this not only with the environment minister but also with the Minister representing the Attorney-General and the Minister for Home Affairs and I was told by the official there that pardons could be given—not would be given, I emphasise, to be fair, but could be given—but it was really an issue for the environment department. Having then sought at the next estimates hearing that assurance from the environment department that it would not really impact on the administration of that particular legislation, I had hoped that the Labor Party may have by now bitten the bullet, so to speak, and introduced some scheme to allow those convictions to be expunged from the record. As I mentioned, it is something that I know Senator Boswell, Senator Joyce, Senator Trood and others of my Queensland colleagues have been working on for over a year now and that will come to fruition when the bill comes before the chamber and the amendment is then dealt with. I thank the Senate for allowing me the indulgence.
This has been an ongoing concern within the coalition for two or three years. We were successful in providing in the legislation that, from a point in time, no further convictions would carry a criminal penalty. We got that through the Senate and both parties. But there were 324-odd fishermen left in limbo that had these breaches against their names, and we were not able to retrospectively address that particular issue. Just before the last election I and my colleagues went to the Prime Minister’s office and we got a form of words to go out with publicly. We campaigned on those words—that we would reverse the decision for those 324 fishermen.
The bill to come before us is the first opportunity we have to honour our commitment to those 324 fishermen. Senator Ian McDonald very wisely found a way through this by an amendment to the legislation. I want to make the point, because we are receiving a number of calls, that it was the National and Liberal parties that have been on this case for many, many years. We have before the House an amendment that will take the criminal offences away, as best we can. I urge the Labor Party to support it, because Senator O’Brien was reported in the Townsville Bulletin as saying that he would give this bipartisan support.
I seek leave to make a correction to the facts.
I said ‘the Attorney-General’. It is open for people to apply to the Minister for Home Affairs. I said there were only five people who had applied to use the senator’s template. The number is four, not five.