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Monday, 1 September 2008
Page: 4133


Senator SCULLION (Leader of the Nationals in the Senate) (12:52 PM) —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.