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

I did speak for about two minutes on the Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008 on the last sitting day. I want to recap what I said about this particular bill. Some time ago, we were asked to pass a bill that would allow for 70 zones to be designated as representative areas. These were called the RAP zones and they were to allow for biodiversity. That bill caused a fair amount of debate and during that time Great Barrier Reef Marine Park Authority came to the parliament and asked senators and members to pass the legislation because they wanted 25 per cent of the reef for their representative area zones.

They visited my office and at that stage I suggested that there was enough reef out there for the representative area zones and they did not have to put them in areas where people fished either commercially or as amateurs. I was told, ‘Yes, that’s a very good idea, Senator Boswell; we’ll certainly take note of that.’ Of course, when the maps came out anything other than that had happened. We found fishing areas that were used for brood prawns, commercial fishing and amateur fishing were all excluded and put in the green zones. It was a terrible bill to have passed.

GBRMPA asked for 25 per cent and ended up taking about 33 per cent. The consequence was that as a government we had to pay out $255 million to compensate fishermen, net makers, outboard motor suppliers, fishing tackle suppliers and fish processors. When GBRMPA came to the government they said: ‘There’ll be a cost to this piece of legislation. It will be between $1 million and $2.5 million.’ After paying out $255 million—and still people are not completely happy—we found out the cost of this legislation.

Apart from the huge cost—the huge human cost of people going bankrupt and losing their businesses, homes and marriages—we found that a number of people, I think about 324, were caught fishing in a green zone and received criminal convictions. These were people who went out in their little tinnies with 10-horsepower motors without GPSs and found they had fished in a green zone. They did not understand it; they did not have the knowledge about where the green zones were and they received a huge fine, I think, of around $2,000. As if that were not bad enough, those people picked up a criminal conviction for taking their grandsons out in a tinnie and ending up in a green zone because they did not have a GPS or did not know how to use one or did not have maps. One would have thought that a warning and a fine would be sufficient, but, no, these people were given criminal convictions. That has an impact on them when they want to go overseas and cannot get a visa, or get some insurance or take out a bank loan; they have a criminal record and all the stigma that that carries. That was totally unfair. It was not what the previous government intended.

I took this to the party room and in 2006 I was able to get the minister at the time to bring in some form of exclusion from a criminal conviction. That was done as from the date we got it through the parliament. People were excluded from any future convictions. But there were a number of people who had already been caught and we needed to reverse that retrospectively. We have never been able to do that.

Going into the last election, I got a form of words from the then Prime Minister, who said that, if we were returned to government, we would exclude those people from criminal convictions. Unfortunately we were not successful in getting back into government, but we now have an opportunity to amend this legislation. Senator Ian Macdonald and I have sponsored an amendment to the legislation that would reverse the criminal conviction and make it a spent conviction. As I understand it—I am not a lawyer—the spent conviction people would not have access to any files that showed a criminal conviction, and such a conviction would not have to be declared. That is the best we can do, and that is what I am asking this parliament to vote on when this amendment is moved by either Senator Macdonald or me. We have gone to a lot of trouble to get this amendment, and I hope that it will enjoy the support of the Senate. I say to the Greens that it was an unintended consequence to charge these people with a criminal conviction but, unfortunately, they do have a criminal conviction. I would like to read out a part of a letter to Senator Xenophon, but I have a similar letter which I may table. It says:

On my retirement, my wife and I sold our house, dispersed our belongings, built a yacht and sailed overseas. I have written in magazines on my personal journey sailing through Japan’s mystical waters. When I came back I cruised down the coast of Queensland. This was our first coastal cruise since our return to Australia. My 1997 GBRMPA charts did not show the particular green zone.

It goes on to say:

In the name of Australia’s ‘fair go’, I sincerely ask you to move an amendment to the Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008 that will soon be before the Senate. My hefty fine is humiliating but the criminal record is patently unfair and I respectfully seek the Senate’s help or your help in ensuring it is expunged by this amendment.

That is one person. There are 324 of those people that have been caught with criminal convictions. Many of them are now too frightened to go out in their boats. Amateur fishing in the Barrier Reef has declined and the reason for its decline is that people are frightened to go out and risk being hit with a huge, hefty fine. Grandfathers taking their grandsons out in a 10- or 12-foot tinnie are terrified that they will end up in the green zone.

I am not advocating that there be no fine in a green zone but I am advocating for the reversal of a criminal conviction picked up by anyone who did not have GPS, correct maps or any way of knowing they were fishing in a green zone. I do not think that is unfair. We have removed the criminal convictions from a point onwards, and the people that were caught in the criminal convictions prior to that point still carry a conviction. So half the people that fished in the green zone have no conviction and the other half—those who were caught before the point in time that we took it to the party room and got the exemptions—still carry a conviction. Senator Ian Macdonald or I will move this amendment and hopefully it will enjoy the support of the Senate retrospectively.

It is not just this side of the parliament who are concerned about it. During a debate just before the last election, Senator O’Brien, who was the then spokesman for the Labor Party, is reported in the Townsville Bulletin as saying:

The government is holding the fishermen’s vote to ransom—

we were then in government—

and yesterday’s announcement was beyond the pale. Frankly, it is an indictment of the government that they are prepared to play politics about these issues. Those who have been convicted have had these convictions sitting against their names for some time. Why couldn’t the government act before today?

Senator O’Brien also said:

An elected Labor government would also be sympathetic to the overturning of the criminal records of the 324 fishermen convicted of the offence. This is about correcting the initial mistakes and we would take a bipartisan position on that.

Senator O’Brien unfortunately is not here, but he will have the opportunity to stand up and support what he said to the people in North Queensland. I do not expect the Greens to support this amendment, but it should have the support of the rest of the Senate. If the Labor Party supported what their shadow minister for primary industry said at that time, then they should support this amendment. I hope that they will and I hope that Senator Xenophon and Senator Fielding will, because it is totally unfair that some people are caught with convictions prior to our taking the conviction away while the people on the other side of that date are excluded. The main reason I rise to speak on this bill is that I see the total unfairness of it.

There is another issue that I want to raise. In June 2006 we brought down some legislation for the Great Barrier Reef Marine Park Authority. That legislation virtually said, because of a lot of lobbying from this side of parliament, that the Great Barrier Reef Marine Park Authority was no longer responsible for itself; the responsibility for it was going back to the minister. I supported that, I fought for it in the party room and I fought for it in this parliament because I thought GBRMPA was right out of control in doing things such as I have mentioned. So we actually brought in legislation that said: ‘The minister will run GBRMPA. Under the Westminster system, that is how it should be.’ That is what we did.

But what I find in this piece of legislation that is coming through the Senate is the most draconian definition of fishing. In fact, it says under proposed section 9 that you are regarded as a fisherman if you are in the action of fishing but also if you do any of the following:

(a)

searching for, or taking, fish;

(b)

attempting to search for, or take, fish;

(c)

engaging in any other activities that can reasonably be expected to result in the locating of, or taking of, fish;

(d)

placing, searching for or recovering fish aggregating devices or associated electronic equipment such as radio beacons ...

And the list goes on.

My interpretation of that is that if you even go across a green zone and you have an echo sounder or fish finder on—and an echo sounder is a fish finder—then you are guilty. In fact, there are more powers under this bill than the Australian Federal Police have to arrest people on charges of espionage. It is totally wrong. So if you want to go and arrest a spy, make sure he has a fish in his pocket and you will be guaranteed to get him.

This is draconian legislation and I will tell you why I believe that it was brought in. It is because, during the debate, someone had the temerity to oppose GBRMPA and take them to court. Magistrate Thomas Black ruled that GPS alone was not accurate enough to convict someone of fishing in a green zone and that proper marine charts and not GBRMPA maps were needed to actively establish a position. If they thought they were hard done by and getting the rough end of that decision, they should have gone back and appealed. But, no, they did not appeal. They have just come in and had more legislation added, had it made it more draconian and added a catch-all so that if someone is even boating across a green zone they are dead to rights caught.

We brought in legislation to try to control or get some sense out of GBRMPA. Unfortunately, I do not think they learnt one lesson. They have come back and I presume have asked the government to give them catch-all legislation. If you are driving over a reef and you have a fishing line in the boat and you turn on your echo sounder, you are dead meat. This is a matter that I hope will go to a Senate committee. I understand that it has the support of the Independents. I am not sure about that; they can speak for themselves.

There are two things in this bill. One is that we are introducing draconian legislation that is more powerful legislation than what the Australian Federal Police have to arrest people under charges of espionage. That is totally wrong. Then we have the aspect that we should be able to expunge some people’s criminal charges so that we do not have these criminal charges hanging over innocent, decent citizens who have not tried to rob a bank or blow up anything and have not been convicted of something else such as theft. We should remove the convictions of innocent people who took their families out fishing and ended up with a criminal conviction. I seek leave to table a letter that has been distributed in the Senate.

Leave granted.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I will make a brief contribution on the Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008. Since this matter was last before the Senate, I have had the opportunity to have further discussions with my colleagues Senators Fielding, Joyce, Boswell and Scullion. I also had a very useful briefing from the minister’s office last week. I can indicate that, as a result of that process, I support this bill being referred to the relevant Senate standing committee for a relatively short period to allow the concerns raised to be appropriately canvassed—in particular, the convictions for illegal fishing. The coalition says that there are some 324 convictions. At the briefing I had with the government they indicated that they were in the order of 116. Perhaps something that the inquiry can clarify is the number of convictions and the circumstances of those convictions. Of course, these convictions occurred prior to this offence becoming expiable in December 2006. These are matters that need to be sorted out through the inquiry process.

Further, I understand that the inquiry may look at the feasibility of pardoning those convicted and the ramifications of that. I also believe it would be appropriate to consider whether a right of rehearing could be an alternative path for those convicted, although my understanding is that the matters were before the Queensland Magistrates Court. How that would interplay with this legislation is another matter that needs to be considered. I would be confident that the committee process would look at those technical aspects.

And there, of course, is the whole issue of the current provisions of schedule 6 of the act. I know that Senators Boswell and Joyce, amongst others, have raised concerns about the breadth of it. I think Senator Boswell refers to it as being draconian. It is a question of taking into account the intent of the provisions to effectively deal with those that flout the legislation but avoiding unintended consequences, which has been raised by Senator Boswell and others.

With those brief remarks, I indicate my support for the referral of this bill to a standing committee. I look forward to the committee’s deliberations and to the report being presented, if that is the will of the Senate.

Nigel Scullion (NT, Country Liberal Party, Shadow Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

The Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008 is a very important piece of legislation. I am not sure about you, Mr Acting Deputy President, but I learned as a very young man about the Seven Wonders of the World. I was most impressed by the pictures that I saw of the Great Barrier Reef, with its marine life. I think it touched everybody’s imagination. As a young man I spent much time around Central Queensland working in the tourism industry associated with the Great Barrier Reef. It is without doubt a fantastic piece of biodiversity which holds an iconic position internationally. There is no doubt at all—and I am sure that this has bipartisan support in this place—that it needs to be protected.

The previous coalition government completed a review of the Great Barrier Reef Marine Park Authority in the general course of good governance. The review made a number of recommendations and the coalition’s response, of course, was to accept those recommendations. This legislation is the result of that decision. Due to the hiatus of the parliament this is the first time that these amendments, which reflect the review, have come before parliament. This is the first opportunity to consider those matters.

This is very, very complex legislation. The time-honoured practice when you are considering legislation of this nature is to reflect on the fact that the devil is in the detail, and this is an absolutely prime example. At first glance, the legislation seems pretty innocuous—providing further protections, stopping villains doing nasty things to fish and generally supporting the act. It all seems a pretty good proposal. Unfortunately, when you get into the detail you see the problems.

Much of my submission has been covered by others in this place, but I would stress a couple of points. Both in Australia and internationally fisheries and marine compliance legislation has by convention provided powers that, as Senator Boswell would describe them, are draconian and Orwellian. That is the case here to a greater or lesser degree. But, as we become more sophisticated with our definitions and with the education of our compliance units, instead of providing extra powers we should actually be diminishing them and providing more education. Certainly marine compliance in the international context has been progressing that way—less hard stick; more education.

Of course, the nature of the marine environment is completely different to that in which, for example, we drove here today. It is very easy to put signs on the corners of streets. It is very easy to educate the community about what side of an artificial line is what. In fact, if it had not been for the advent of GPS and an assumption that there would be no child in poverty without a GPS in their pocket, I suspect much of the legislation we are looking at would be so reliant on technology now that we simply could not support it. That is not the case, but I think it is very important that we look at the reasons why we are imposing such a draconian process. Generally speaking the bill refers to remoteness and necessities due to isolation. I will quote from the explanatory memorandum. This relates to an inspector of GBRMPA:

The inspector may also conduct a search of a person on the vessel, platform etc, without warrant, for any eligible seizable items or evidential material. The search is of essentially the same nature as a “frisk search” … This power is necessary to ensure the safety of officers—

Who knows? The fisherman might be armed and dangerous—

conducting searches and to facilitate the efficient collection of evidence. Obtaining a warrant prior to conducting a search is impractical and inefficient …

And it goes on. I raise that to illustrate my colleague Senator Boswell’s assertion that we go to a great deal of effort to provide an extremely wide scope of powers that normally would be conditional upon the judiciary system having some intervention, such as a warrant, but because of the nature of remoteness this is not the case here—though I do not think it is reasonable to suggest that every part of the Great Barrier Reef is so remote as to be exempt from some of those judicial processes.

However, even if you take that on face value it is so important that you then ensure that the definitions are actually going to catch the activity that you are trying to prevent. It all goes back to the basis of mischief—what is the mischief we are trying to prevent with this?—and then having a look at the legislation to see if that actually does the job. It is a pretty simple principle of law. We need to ensure that we do not entrap people undertaking what might actually be innocent passage. It is very difficult to find the balance.

The management of the Great Barrier Reef Marine Park Authority was not formed to lock it up and leave it. It was formed to provide a forum where the wisest heads in Australia and in the world would get together and provide the very best management arrangements—and those management arrangements are often confusing. People say we have fish experts and dugong experts, but the great challenge with fish and dugong is that, no matter how much you tell them to go right or to go left or to not go over there, they do not have a clue. The legislation before the Senate does not actually act on those creatures; it only acts on the management of people. That is the fundamental point. Managing people is very difficult in this area because people have to know exactly where they are and the circumstances that led to them being there. It deals with different behaviour. Normal activities like sailing a yacht, putting a line over the side or swimming—if you have a pair of goggles on or a spear gun with you—are each very prescriptively described.

It is very important to get the definitions right not only so that we do not catch people who are providing innocent passage but also to ensure that we are not preventing legitimate processes. One might say: ‘There are a lot of processes in place. Simply talk to the police and the Great Barrier Reef Marine Park Authority inspectors, who are very well versed in maritime law. They know the act. They will show discretion. If it is obviously not a mischief under the act, they will not worry about it.’ Perhaps through instruction or convention, I have to say that anecdotally, and probably factually, that has not been the case in the Great Barrier Reef. If you are outside of the law under the act and you are found, somebody will press charges.

I will bring up a couple of cases in point in terms of the importance of a definition. In item 9 of schedule 6 there is an amendment to section 3(1), which is the definition of ‘fishing’. It is quite basic. I understand what fishing is. As a recreational fisherman and previously as a commercial fisherman, I understand exactly what that is. If we are not allowing that there, then the definition should reflect that. I understand what ‘the taking of fish’ means, and that is a fine part of it. Then there is ‘searching for fish’, which potentially should be included. But ‘attempting to search or take fish’?

One of the challenges with legislation is that we need to ensure that we keep up with the trend. The Great Barrier Reef is important. People continue to tell us about the multi-billion dollar industry in tourism. We need to be competitive to ensure that new developments in tourism arise.

As an example, one of the newest aspects of tourism—what people really want to do—is observing birds. ‘Have you seen the latest fairy wren?’ ‘No, I haven’t. Where is it?’ There is a huge network. I note that in the Northern Territory, where I am from, there are great opportunities being provided for Indigenous communities through the new avi-tourism. Under the definition here, if you want to find seabirds, the indicators for finding seabirds are the same as for finding tuna. A lot of the tuna groups chase three- or four-inch bait and so do the seabirds—they are not after the tuna. But if you want to find where the birds are—on radar, visually or on your sounder—you follow the fish. That is how we do it. So searching for fish to provide opportunities for avi-tourism will not be able to be done. ‘I’m looking for fish, mate.’ ‘You can’t do that here.’ ‘Why?’ ‘Sorry. It’s in the legislation. You can’t do that.’ So that is barred.

Regarding the Great Barrier Reef, remember that I talked about the wonderful coloured fish that I saw? We have people who are selling a whole new range of kayak—kayaks with perspex bottoms in them. They are specifically for observing and searching for fish. It is human nature. ‘I have seen that one already.’ ‘What haven’t you seen?’ ‘I haven’t seen the left-handed tufted titfish yet, but I’m going to be looking for one. I know there’s one out there somewhere, so I will continue to paddle in my kayak or swim around or whatever to ensure that I find one.’

This is the amended section. Some sections of this were in the original act, and I know that Senator Siewert may bring my attention to that. The point that I make is that this is an opportunity to re-look at this and to ensure that this is not in fact going to catch someone by error and is not going to prevent things that we thought were permissible. It is very important that we spell it out.

In terms of ‘attempting to search for’ and asking people whether they were looking for something with predatory intent, I am not sure how you would separate those issues. I am someone who cannot see a coral trout in an aquarium without seeing a salad and chips. Not everybody is like that. I see things differently than others. There are a number of subtleties that have crept into these definitions that we have an opportunity to sort out.

What we need to do is to spell it out so that everybody understands it. The people who visit the Great Barrier Reef from all over the world, from around Australia and from Queensland need to be able to pick up this piece of legislation and say: ‘Those are the rules. They are easy to understand. I can do that. I definitely won’t be fishing.’ We do not want this legislation to pass this place and then have another series of torts—arrest this bloke and try that out and arrest that bloke and try the other thing out. That is not the way to do this. We need to get to the bottom of some of those things.

The way to do that is to send this to a Senate committee. A Senate committee would look very carefully at those issues. I foreshadow cosponsoring a motion that will send this to a Senate committee—a short Senate committee; we are not wasting any time on this—that will provide, as the Senate usually does, some advice on those matters. We will be able to call on expert witnesses and on stakeholders, who can come along and provide advice.

I know that my good friend and colleague Senator Siewert will explain in the fullness of time the position of the Greens in this place. One of the things that they are consistent on is this right to have a say. They say, ‘We need to consult with stakeholders; we can’t give too much draconian power to too few.’ That is the line of the Greens. I do not want to verbal them, but I think that that is pretty reasonable. They are held up by some sectors as doing the right thing when they argue that. That is why I am bit astonished today. We are saying that this should go to a Senate committee because of the nature of the powers that are being provided to some compliance officers at GBRMPA. We need to ensure that they are appropriate, that the powers that they have are backed up with education and support from the stakeholders and that principally everybody understands what is going on. I am very disappointed, and no doubt the Greens will have an opportunity to explain themselves in that regard.

I would like to also commend another couple of motions on this matter. Senator Macdonald and Senator Boswell, I understand, will put a motion to ensure that the people on the GBRMPA board have genuine experience or are able to have direct relationships with the stakeholders that have experience, particularly in tourism and other industries on the reef. I note and support the fact that the legislation provides for amendments to ensure that there is some Indigenous representation. The area of Indigenous use in marine managed areas is an area of great contention. It is still in its genesis. It is very important to ensure that we have Indigenous representatives who have been working on the reef and who can help the board work through some of those processes. But equally—and I would commend Senators Macdonald and Boswell—it is so important to ensure that we do not have people on the board just because of some sort of vague board experience. We do need hands-on experience to reflect the stakeholders and reflect the complexity of the environment about which they are trying to make decisions.

The original act provided for a strict liability offence in terms of the criminality of the matter of a conviction. It has been spoken about before in this place, but I would like to add my support to Senator Boswell’s comments. We blew it. Whoever’s decision it was, it was not a good decision. We have said: ‘Look, guys, it does not matter what the nature of the offence or whatever mitigating circumstances there are. We are going to make sure that it’s a criminal offence, not a civil matter.’ I guess some of the logic behind it was that this would be a significant deterrent. People would really think about that before they went fishing and they would do the right thing. I think time has shown that that is not the case. That has certainly been overturned, but there was a period of time in which a number of fishermen—and I have been given several numbers, but a lot of fishermen or people who were outside the law—were, through that strict liability offence, charged with a criminal offence rather than a civil offence. It is now a civil offence and I think it makes a great deal of sense from the point of view of  equity to go back and support Senator Macdonald and Senator Boswell’s motion to overturn the nature of that offence. Of course, there are difficulties in gaining visas, in travel. There are a whole range of issues that I think are so very important to that matter.

Any matters that are to be dealt with retrospectively obviously have difficulties. Often in the past we have been a bit reluctant to do that, but I think this is one of those matters where we erred, and when this place has erred we should fix that up. There are people out there right now, whom Senator Boswell has spoken about, that are suffering. I have read many of their letters and they have spoken to me personally. I believe that those who have spoken to me have every right to be aggrieved by the nature of that. Those people who have done exactly the same thing since have a civil penalty, and I think that should be dealt with.

But, of course, all of these matters are matters of detail. We are dealing with a reef that has 1,500 species of fish, 4,000 starfish, 400 sponges and a huge number of different zones and different arrangements in different places. So we have to be very prescriptive in ensuring that the legislation is written in a way that is easy to understand. When I spoke to compliance officers from the Great Barrier Reef Marine Park Authority a couple of years ago, they told me that their biggest problem was understanding the legislation. Yes, there had been processes where people had been taken from offshore and demanded to return. They were innocent, but then there was a lot of angst in the community that they were treated poorly. So I think it is to everybody’s benefit that we look at this legislation again, particularly the definitions, the nature of the criminality and the civil offences and a number of other areas. That is why I have foreshadowed this going to a Senate committee. I, and also on behalf of Senator Fielding, move:

At the end of the motion add:

and the bill be referred to the Standing Committee on Environment, Communications and the Arts for inquiry and report by 23 September 2008.

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

I would like to remind the chamber what we are talking about. We are talking about a bill, the Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008, that makes a number of amendments to the act which, overall, modernise and strengthen the act. We are talking about a bill that modernises and strengthens the act, and the act is there to protect the Great Barrier Reef Marine Park, which is the largest and most extensive coral reef system in the world. It covers an area of 344,400 square kilometres. It is one of the richest, most complex and most diverse ecosystems in the world, and that is highly significant. It is an honour for Australia to have such an important reef. It is a unique and diverse marine system that comprises 2,900 reefs, 600 continental islands and 300 coral cays. It is home to 1,500 species of fish; one-third of the world’s soft corals; 13,000 dugongs—Australia’s entire population is estimated to be around 90,000, so it is a very significant proportion of those dugongs; six species of marine turtles, all of which are listed as threatened; and 30 species of cetaceans—whales and dolphins. It has been recognised for many years and it has been listed as a World Heritage site. It is in fact the largest World Heritage area in the world. Unfortunately, the area is facing a great many threats, not least of which, and coming down right at us, is the impact of climate change. Many predictions are that it is going to have a very severe impact on the reef. In other words, we as Australians have a responsibility to protect this reef.

I also remind the chamber that there has been extensive review of the management of the Great Barrier Reef Marine Park and extensive consultation—years in the making. As Senator Boswell pointed out, there has been a big compensation package also. So I find it quite astounding that at the last minute to midnight the coalition start jumping up and down, when originally this legislation was listed as non-contro legislation. All of a sudden, at one minute to midnight, they have discovered major issues with it. The Greens, as people know, opposed the previous motion by Senator Fielding to send this off to a committee because the original date of reporting was 10 November and the Greens think there has been adequate consultation around this particular legislation. We are very keen to get moving and get this very important legislation in place. So that is why we thought that it was entirely inappropriate to send it off to a committee. We need to get these important protections in place for the reef, not to push it off yet again. Sending it off to a committee to report in November is far too late.

Let us look at what some of these changes are. The changes are to the objects and applications of the act, putting in place a new objects section, with the primary object of the act being the long-term protection of the environment, biodiversity and heritage values of the GBR. They are absolutely essential amendments from the point of view of the Greens, and it is about time that that primary objective was finally put in place. The changes also put in place for the Great Barrier Reef Marine Park Authority a requirement for at least one member of the authority to be an Indigenous person. I do not think there will be any objection to that; I certainly hope not. The changes proclaim the new marine park, zoning plans and plans of management; improve the environmental impact assessment process; look at the investigation and enforcement regime for the park; and also, as other senators have pointed out, provide for offences and the civil penalties, under schedule 6.

All of these are important amendments. So we are deeply concerned because this legislation has been a long time in consultation and in the making, and originally it appeared to us that the intention was to keep putting it off and putting it off. Issues have been raised around the definition of ‘fishing’. As far as I understand it, the definition of fishing is the same one that currently exists in the act. What this bill in fact does is move it to the definition provisions of the act. The definition covers:

searching for, or taking, fish;

attempting to search for, or take, fish;

engaging in any other activity that can reasonably be expected to result in the locating of, or taking of, fish;

…            …            …

any operations at sea directly in support of, or in preparation for, any activity described in this definition;

We believe that this is a reasonable definition of fishing. And one wonders if all the consequences that Senator Scullion has just pointed out are going to result when it is the current definition. Have we had these troubles to date? As I understand it, they are not the issues that have been raised in relation to those people who have now got a criminal conviction. I do not think they deny fishing. I think it is about the location in which they were fishing, not the act of fishing. It is very important that we make the point that this is the same definition that was previously in the act. Yes, it has moved. Yes, there are amendments. But it is still about the taking of fish—not, as Senator Joyce pointed out, about considering the taking of fish. One wonders if the Great Barrier Reef Marine Park Authority now have extrasensory perception and can read people’s minds about whether or not they are considering fishing.

I think that is a distraction and that what is happening at the moment is an attempt to slow down this legislation which, as I said, has been a long time in the making. There has been a lot of consultation. Yes, there is discontent in the industry. But it is time that the act was modernised and strengthened to do what the rest of Australia wants it to do, and that is to protect the Great Barrier Reef and to put in place the primary objective: the long-term protection of the environment, biodiversity and heritage values of the most important reef in the world. That is why the Greens did not support putting this off any longer by referring it to another inquiry to raise the same issues that have been raised ad nauseam in this place about dealing with the criminal convictions that fishers have faced.

I am seeking further advice, but I have never heard of putting into a piece of legislation pardons for people. Senator Ludwig last week explained to this place what provisions the government has made to move towards fixing the issues. I can appreciate that having a criminal conviction on your record can lead to problems for you and is scary. Just ask the thousands of people that have convictions on their records for protesting to protect the environment. I have never heard anybody, other than Greens senators, standing up and trying to defend those people—and those people have exactly the same concerns about criminal convictions on their records when all they have been doing is standing up for the environment. All of a sudden, because these people are fishers, we have to hear it forever and ever. I look forward to the day the same people stand up for the rights and the protections of those who stand up purely for the environment—not for self-interest, not for taking things from the environment, but to protect it. As I said, I look forward to people standing up and speaking out for them.

We accept that both the government and the opposition will be sending legislation to a committee. Thank goodness it is now for a shorter time frame. I expect that then we will have a debate on this bill and it will get passed by this place so that the necessary protections for the Great Barrier Reef are finally put in place, because these are the things that are important. Protecting this World Heritage reef is what is important. That is what we are debating here. People seem to have lost sight of the fact that this debate is about actually protecting the Great Barrier Reef—a reef that is endangered; a reef that all scientists are now saying is under extreme threat.

Australia has a global responsibility to protect this reef and it needs to do its utmost to protect it. Here we are having arguments about the definition of fishing when what we are trying to do is achieve better protection for the Great Barrier Reef. I urge senators to bear that in mind when they are considering this legislation—what we are actually talking about is the future of the reef itself, which is threatened and endangered and has many endangered species. If we do not manage it properly, future generations will ask: ‘What were you doing? You were fiddling around while the future of this very, very important place was going down the drain.’ I am extremely disappointed that these issues are still being brought up when they have been brought up, as I said, ad nauseam in this place. The government has in fact moved to fix it, yet we are still talking about it. We were told last week that only four people have applied for a pardon. This has been talked and talked about, yet only four people have applied for a pardon. Please, let’s get on with it and start legislating for the protection of the most important reef system in the world. How embarrassing: internationally they are looking at us fighting about the definition of fishing when we are talking about the most important reef in the world. Please, let’s get on with it.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

I know that recreational fishing has been in the news over the last couple of days, but there have been some real injustices done to some ordinary Australians that should get more coverage in the news. Some ordinary Australians have just put their fishing line inadvertently in the wrong spot and have then been pinged and have now got a criminal conviction. That is certainly one issue. But the Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008 in front of us is also dealing with some complexities and changes in some concepts and definitions to do with the Great Barrier Reef Marine Park. The recreational use of the marine park is a key issue for the community living in northern Queensland and maybe some of the concepts in this bill may roll around into other marine parks, so I think that we do have to be very careful.

There is community concern that this bill might further restrict recreational fishing in the park. Of course we should be protecting such a precious part of our natural heritage as the Great Barrier Reef, but that needs also to be balanced with recreational needs. Family First believes that the concerns that have been raised need to be considered and we need to make sure that these concerns are heard and that the bill does not end up shutting recreational activities completely out of the park. The management of the park has come under question in recent years, and I mentioned before the crazy situation where some recreational fishermen have been given criminal convictions for dropping a fishing line inadvertently in the wrong place.

When we have serious and significant community concerns about the effect of any bill it would make sense to have it referred through to a committee, and that is what Family First sought to do last week. Hopefully, we will have this bill referred to the Senate committee to look at the best way of sorting through the issues and concerns. As Senator Scullion mentioned before on the second reading amendment that was moved and jointly sponsored by Family First, we are hopeful that this Senate chamber agrees that it is wise to refer this bill to a committee hearing. I will make it clear that Family First will not support this bill if there is not a Senate hearing, and that should force the issue, to make sure that ordinary Australians can also have their concerns raised and addressed through a Senate process. I think that that is a good thing to be done.

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

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary Assisting the Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Who wrote this rubbish for you?

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

It is also worth remembering the nature of the offences in question here, Senator Macdonald. For example, within the group convicted of illegal recreational fishing there are people who first of all were repeat offenders. That needs to be acknowledged. They were found fishing within metres of a sign saying that the area is a green zone and that fishing is not permitted. They were breaching not only the zoning plan but also Queensland fisheries legislation by being over the bag limit and taking undersized or protected fish. They were people who attempted to cover the registration number of their boat when surveillance flights passed to prevent identification. In other words, they clearly knew that they were doing the wrong thing.

As the coalition’s amendment would also deal with commercial offences it would certainly have some implications. It would let off scot-free the people who were repeat offenders and who trawled in green zones on multiple occasions, which can be enough to undo the benefits accruing from the area being closed to fishing over several years. They were people who used lines several kilometres long in a green zone. Such fishing practices are not permitted anywhere in the marine park because of their significant environmental impacts, let alone in a green zone. These people were given fines in the order of $30,000 to $40,000 in recognition of the seriousness of the offence and the environmental harm caused. The opposition proposes to pardon these people and let them walk away scot-free too.

It is also worth noting that the government is not aware of any commercial fishers raising concerns about convictions. In fact, commercial fishing bodies are of the public view that both commercial and recreational fishers should play by the rules and if they do not should be penalised to the full extent of the law. The overwhelming majority of people play by the rules and stick to fishing in areas of the marine park where fishing is permitted. Let us be clear: quashing the convictions of people who have actually broken the law punishes those who do the right thing and sends a signal that it is okay to break the law if all you are doing is fishing in the marine park. For these reasons the government will not be supporting the amendments if moved.

I will briefly touch on some other points in the debate. Senator Joyce was at pains to emphasise that if this legislation is allowed to pass it will set a new benchmark, somehow will call into risk the Australian way of life and will jeopardise our entire system of law. In this respect Senator Joyce was particularly concerned about the application of the precautionary principle and the definition of fishing. This bill in many ways is simply bringing what is currently quite antiquated legislation up to speed with modern equivalents. On the issue of the precautionary principle, I can inform Senator Joyce and opposition members that the principle underpins some 120 Australian federal and state laws. These include the Commonwealth’s primary environmental law, the Environment Protection and Biodiversity Conservation Act 1999, which is legislation that was drafted and passed by the coalition when in government; the Commonwealth’s Fisheries Management Act 1991; and Queensland’s Fisheries Act 1994. So the benchmark has well and truly been set as far as the precautionary principle is concerned.

We know from the administration of these 120-plus laws that the precautionary principle does not support the proposition that decision makers can simply act on the basis of an ‘inherent fear’, to use the words of Senator Joyce. What the principle means is that where there is scientific uncertainty and there is a risk of serious or irreversible environmental harm we should err on the side of caution. This is only common sense. If we do not know, and there is a risk of an impact that is irreversible, we certainly need to think carefully about how we proceed.

This does not excuse the government and its agencies from managing and administering legislation based on the best possible information. Indeed, the government and the Great Barrier Reef Marine Park Authority are committed to using comprehensive and robust scientific and socioeconomic information to underpin management of the Great Barrier Reef. As an example, the government has committed $40 million to a Marine and Tropical Sciences Research Facility, or MTSRF, located in North Queensland. The MTSRF plans, funds and coordinates scientific and socioeconomic research to underpin management of the Great Barrier Reef, the Torres Strait and the wet tropics.

As another example, the Great Barrier Reef Marine Park Act requires the five-yearly preparation of an outlook report on the state of and outlook for the Great Barrier Reef and the effectiveness of management measures. The report must be peer reviewed by experts appointed by the minister and must be tabled in the parliament. The outlook report was a key recommendation of the 2006 review of the act. It will provide a robust, comprehensive, peer reviewed and publicly available source of scientific and socioeconomic information to inform management and to provide accountability. The first report is due in July 2009.

As a final example, the zoning plan development process set out in the act requires the following: if a zoning plan is opened to review, the authority must publish scientific and socioeconomic information explaining the reason why it needs to be; and, at the time of public consultations during zoning plan development, the authority must publish relevant scientific and socioeconomic information.

Senator Joyce also raised concerns about the definition of ‘fishing’, and Senator Siewert was very clear in her criticism of that. Again, the definition in the bill is not some draconian innovation. In fact, the definition of ‘fishing’ in the bill restates the existing definition in the act, with one minor change. Currently, processing and transporting fish could be considered fishing. This has been removed specifically in response to industry feedback. There have otherwise been no concerns about the definition raised in the seven years since the definition was first included in the act by the then coalition government.

Not only is the definition not new to the Great Barrier Reef Marine Park Act but it has been a feature of the Commonwealth’s Fisheries Management Act since 1991. The consistent definition harmonises the rules and helps fishers to better understand their obligations under both environmental and fisheries laws. So rather than this bill setting a precedent, as Senator Joyce suggested, the precedent has already been set in other legislation, which has been working effectively for some years. The definition is not only consistent with fisheries legislation but is also consistent with normal criminal law, whereby planning to commit an offence can itself be an offence. Therefore, searching for fish in a zone where fishing is prohibited could potentially amount to an offence where it is clear that fishing is contemplated. This would not pick up people who were doing the right thing, such as people travelling through a zone to get to an area where fishing is allowed, even if they, for example, had a sonar fish finder on board. What the provision quite importantly does pick up is the situation where someone is clearly about to do the wrong thing but has been apprehended just in advance of doing so. It is in this sort of circumstance that a court might be inclined to enter a conviction if the matter is proved beyond reasonable doubt. There have been cases where this has happened and no concerns were previously raised.

The government has circulated an amendment, which it plans to move during the committee stage. The amendment will extend the current prohibition on mining and drilling in the Great Barrier Reef region to also apply to geological storage of greenhouse gases. This provides clarity and certainty regarding the government’s position on this issue. The government considers geological storage of greenhouse gases as an important prospective technology for reducing greenhouse gas emissions, but believes there are more appropriate locations for it than our unique Great Barrier Reef.

I have noted during the debate the concerns of Senators Fielding and Xenophon, who are supporting moves to refer the bill to committee. Should they still wish to do so after having heard the government’s response to the key concerns raised in the debate, the government will not oppose the motion, but will ask that a reporting date of 15 September 2008 be set. I will shortly move an amendment to that effect. The government does not believe that an extended inquiry into the bill is necessary. This bill is a product of an extensive review and consultation process already, and it has strong support from stakeholders, including both commercial and recreational fishing peak bodies and, until this sudden about-face, the coalition. So only a small number of concerns have been raised here in the debate and I have responded to these on behalf of the government.

The bill makes long overdue and much needed changes. It puts in place a robust, comprehensive regulatory framework for the Great Barrier Reef which is fit for meeting the challenges of the future. It brings regulatory arrangements for the Great Barrier Reef up to speed with contemporary legislation, which is something that should have been done long ago, and it something that this government does not wish to delay unnecessarily. I commend the bill to the Senate.

I now move the foreshadowed amendment to the second reading amendment moved by Senator Scullion. I move:

Omit “23 September 2008”, substitute “15 September 2008”.

Question agreed to.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

The question now is that the second reading amendment moved by Senator Scullion, as amended by Senator Stephens, be agreed to.

Question agreed to.

Original question, as amended, agreed to.

Bill read a second time.