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Tuesday, 11 November 2008
Page: 12


Senator IAN MACDONALD (2:00 PM) —I seek leave to incorporate the document in Hansard.

Leave granted.

The letter read as follows—

AUSTRALIAN GOVERNMENT : DEPARTMENT OF THE ENVIRONMENT, WATER, HERITAGE AND THE ARTS

The Secretary

Senate Standing Committee on Environment, Communications and the Arts Department of the Senate

Via email: eca.sen@aph.gov.au.

Inquiry into the provisions of the Great Barrier Reef Marine Park and Other Legislation Amendment Bill 2008 — additional information

The following forms an addendum to the submission to the above inquiry from the Department of the Environment, Water, Heritage and the Arts and the Great Barrier Reef Marine Park Authority.

The addendum provides further clarification regarding the definition of “fishing” proposed by the Bill and additional information on prosecutions for recreational fishing offences.

Definition of “Fishing”

To be charged for fishing in a prohibited area in the Great Barrier Reef Marine Park, a breach of the Great Barrier Reef Marine Park Zoning Plan 2003 (Zoning Plan) must be established MI the first instance. The definition of fishing in the Great Barrier Reef Marine Park Act 197.5 (GBRMP Act), as proposed to be amended, does not determine what is and is not a breach of the Zoning Plan and therefore an offence. This is determined exclusively by the definition of “fishing” in the Zoning Plan (which is not proposed to be amended) and through application of Criminal Code provisions relating to attempted offences.

The Zoning Plan regulates use of the various zones of the Marine Park. This includes restrictions on “fishing and collecting” in certain zones. The Zoning Plan defines “fishing and collecting” as “taking a plant, animal or marine product”.

The GBRMP Act in its current form, and also as proposed to be amended, makes it an offence to engage in conduct that is prohibited under the Zoning Plan.

The Criminal Code Part 2.4 provides that “attempting” to commit an offence can itself be an offence. In this respect, the Criminal Code notes that, for a person to be guilty of attempting to commit an offence, “the conduct must be more than merely preparatory to the commission of the offence”, and that whether or not this is the case is a matter of fact. It is for the prosecution to establish beyond reasonable doubt that a person attempted to commit an offence. At this point, the definition of fishing in the Act (as proposed to be amended) does not come into play. An offence will have been committed if:

  • a person engages in conduct that is “fishing” (within the meaning of the Zoning Plan), in a zone where it is prohibited; or
  • a person attempts (as provided for by Part 2.4 of the Criminal Code) to engage in “fishing” (within the meaning of the Zoning Plan) in zones closed to fishing

In the case of only circumstantial evidence, the court is required to draw the inference most favourable to the accused.

This would be an offence of engaging (or attempting to engage) in “prohibited” conduct (Bill Schedule 6, Item 24, 38BA).

It is only once a breach of the Zoning Plan has been established, that the definition of fishing in the Act and Bill, as proposed, is used in the classification of offences for the purposes of determining potential penalties. That is, the prosecution can seek to classify the conduct constituting the offence as “fishing” using a “commercial fishing vessel”. Here, the definitions of “fishing” and “commercial fishing vessel” in the Bill are applied. If these additional elements are proven beyond reasonable doubt, a person can be convicted of an “aggravated offence” (Bill Schedule 6, Item 24, 38GA). If it is not proven, the person is convicted of the “base” offence of engaging (or attempting to engage) in “prohibited” conduct (Bill Schedule 6, Item 24, 38BA).

In other words, the purpose of defining “fishing” in the Act, and reason for its scope, is to classify an offence as “aggravated” only once a breach of the Zoning Plan has already been established.

The definition of “fishing” in the Act does not extend, modify or qualify what can be considered “fishing” for the purposes of determining whether a person has engaged in, or attempted to engage in, conduct that is prohibited under the Zoning Plan. Only the definition in the Zoning Plan and application of the Criminal Code are relevant in this context.

In summary, the Bill includes a definition of “fishing” carried over from the current GBRMP Act, with only one change - “processing, carrying or transhipping of fish that have been taken” has been removed from the definition. The definition in the Act and the Bill as proposed is used in the classification of offences for the purposes of determining potential penalties. The offence currently is, and under the Bill would continue to be, determined by the definition of fishing as described in the Zoning Plan and the application of the Criminal Code.

Recreational Fishing Convictions

Attached is a summary of the facts and sentencing remarks of all persons prosecuted for recreational fishing offences committed in the period 1 July 2004 to 16 December 2006. The summary is a “Comparative Sentencing Schedule” prepared and maintained by the Commonwealth Director of Public Prosecutions (CDPP). It is provided to Magistrates and defendants by the CDPP in the context of a prosecution. Its purpose is to facilitate consistent sentencing by providing Magistrates with information on the penalties imposed in cases of similar circumstance. It is also provided to defendants in the interests of procedural fairness.

Yours sincerely,

Mike Callaghan Deputy Secretary

Progress reported.