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Monday, 1 September 2008
Page: 4129


Senator BOSWELL (12:32 PM) —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.