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Monday, 1 September 2008
Page: 4140


Senator STEPHENS (Parliamentary Secretary for Social Inclusion and the Voluntary Sector and Parliamentary Secretary Assisting the Prime Minister for Social Inclusion) (1:25 PM) —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.


Senator Ian Macdonald —Who wrote this rubbish for you?


Senator STEPHENS —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.


The ACTING DEPUTY PRESIDENT (Senator Humphries)—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.