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Tuesday, 16 March 2010
Page: 1938


Senator FAULKNER (Minister for Defence) (5:03 PM) —I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (RECREATIONAL FISHING FOR MAKO AND PORBEAGLE SHARKS) BILL 2010

On 25 January this year the Government announced it would be acting to address the disproportionate impacts on recreational fishers that have resulted from the inflexible relationship between our national environmental law - the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) - and the Convention on the Conservation of Migratory Species of Wild Animals.  This Bill specifically addresses those impacts.  The Government takes its international obligations seriously, however, it is important that our domestic legislation appropriately reflects and implements our international obligations, while also providing the flexibility to properly take into account our particular domestic circumstances. 

The Convention on the Conservation of Migratory Species of Wild Animals is an intergovernmental treaty that is concerned with the conservation of wildlife and habitats on a global scale. Australia has been a Party to the Convention since 1991 and contributes actively and constructively to international conservation efforts under its auspices.

The Convention includes two appendices, which list migratory species identified as requiring conservation action. Appendix I includes migratory species which are in danger of extinction throughout all or a significant proportion of their range.   Parties must provide immediate protection for migratory species included in Appendix I.

While animals listed on Appendix I should receive a very high level of protection under our national environmental law, commensurate with the significant threats that they face, animals listed on Appendix II do not require the same level of protection.  Appendix II lists migratory species that are not endangered but have an “unfavourable conservation status”, and which require international agreements for their management, as well as species with a conservation status that would benefit from international cooperation.  Parties are required to endeavour to conclude Agreements covering the conservation and management of migratory species included in Appendix II.

On 8 December 2008, at the 9th Conference of the Parties to the Convention, a number of species were added to these Appendices.  This included the addition to Appendix II of three species of migratory sharks that occur in Australian waters: longfin mako; shortfin mako; and porbeagle sharks.

The Australian Government is committed to, and is actively implementing, its international obligations under the Convention that stem from these listings.  The Government recognises that, by virtue of their inclusion in Appendix II, these species require collaborative international efforts to aid their conservation. 

Earlier this month the Government sent a delegation to negotiations in Manila, the Philippines, to pursue a global Memorandum of Understanding on the Conservation of Migratory Sharks.  The Government successfully argued that this global MOU should cover all species of sharks currently included in the convention Appendices - including makos and porbeagles.  This MOU is one example of Australia’s commitment to shark conservation, and is a welcome step towards enhanced international cooperation and collaboration on the conservation of these species, in keeping with our obligations under the Convention.

The EPBC Act does not distinguish between Appendix I and Appendix II species.  Any species that occurs in Australia and is included in either of the Convention Appendices must be included in the list of migratory species established under the EPBC Act.  Once a species is listed, it becomes prohibited to kill, injure, take, trade, keep or move a listed migratory species in Commonwealth areas; and to trade, keep or move a listed migratory species that has been taken in a Commonwealth area.

As required by the legislation as it currently stands, Mr Peter Garrett MP, the Minister for Environment Protection, Heritage and the Arts, listed shortfin mako, longfin mako and porbeagle sharks as migratory species under the EPBC Act.  This listing became effective on 29 January 2010.

The Government is aware that the domestic listing of mako and porbeagle sharks has significant implications for recreational fishers in Australia.  Makos are a highly prized sport fish, and in some parts of Australia, are a primary target species for game fishers.  The porbeagle is also taken by recreational fishers in southern Australian waters.  The Government recognises the social and cultural importance of recreational fishing to many Australians, and its economic benefit to some coastal communities.  The Government also appreciates that much recreational fishing activity is carried out in a sustainable manner, for example using catch and release methods. 

The EPBC Act currently does not allow for any flexibility on either the question of listing, or on the subsequent offence provisions related to migratory species.  As the legislation stands, recreational fishers stand to be disproportionately and unfairly impacted by the listing.  These implications cannot be addressed effectively either administratively or by regulation.

The recently completed Independent Review of the EPBC Act, which was commissioned by the Government, examined the provisions of the EPBC Act relating to migratory species.  It found that the clear intention of the Convention is to differentiate between Appendix I and Appendix II species and the level of protection required.  The Review reported that the automatic listing of Appendix II species as migratory species under the EPBC Act “goes beyond the extent of Australia’s international obligations, affording a higher level of protection to Appendix II species than is otherwise required”.  It found that in some cases this may give rise to unnecessarily restrictive measures in relation to species that do not have an unfavourable conservation status.  The Review recommends changes to the provisions in Part 13 of the EPBC Act to address these issues.

The Government believes that the current situation is one where the current provisions of the EPBC Act do give rise to unnecessarily restrictive measures.  The Government is currently considering the findings of the Independent Review.  The Government will provide a comprehensive response in due course.  In the interim, the Government has decided to act as a priority to address the disproportionate impacts on recreational fishers that stem from the mandatory listing of mako and porbeagle sharks.

In this regard, the Minister for Environment Protection, Heritage and the Arts has acknowledged the work of the Member for Corangamite, Darren Cheeseman, and the Member for Braddon, Sid Sidebottom, both of whom have large numbers of recreational fishers in their electorates and who worked with those groups and Minister Garrett’s office to bring this legislative change forward on behalf of their constituents.

The listing of mako and porbeagle sharks on Appendix II of the Convention was driven primarily by concerns for northern hemisphere populations of these species, where the plight of the species due to over-fishing is well-understood.  There is no evidence to suggest that mako or porbeagle populations in Australian waters are similarly threatened.

The Government takes its international responsibilities seriously. However, the Government also believes that our own legislation should fully implement our international responsibilities while providing flexibility to properly take into account our domestic circumstances. 

This Bill will address those disproportionate impacts on recreational fishers by providing a narrow exception for recreational fishing of longfin mako, shortfin mako and porbeagle sharks to the offence provisions of Part 13, Division 2 of the EPBC Act. That means it will not be an offence to kill, injure, take, trade, keep or move mako or porbeagle sharks in or from Commonwealth waters, where that action is taken in the course of recreational fishing. This Bill will not affect state regulation of recreational fishing of these species.

The Bill will not apply to commercial fisheries, which will continue to be subject to the ongoing accreditation processes under Part 13 of the EPBC Act. The Bill will not affect the offences under Part 3 of the EPBC Act, which prohibit actions that have, will have or are likely to have a significant impact on listed migratory species, nor will it affect prohibitions under Division 1 of Part 13 of the EPBC Act relating to listed threatened species, should mako or porbeagle sharks be listed as a threatened species at any time in the future.

The changes to the EPBC Act proposed by this Bill will ensure that international changes to the status of mako and porbeagle sharks and the consequent listing of these species under the Act will not affect recreational fishing activities in Australia.  These changes reflect the fact that as the EPBC Act currently stands, the requirement to list mako and porbeagle sharks as migratory species will have a disproportionate and unfair impact on recreational fishers - impacts that extend beyond what the Government currently considers is warranted for the protection of mako and porbeagle sharks in Commonwealth waters.  This Bill is consistent with our international obligations in relation to these species.  The Government remains committed to shark conservation measures both domestically and internationally, and will continue its active engagement in efforts under the Convention on Migratory Species and in other fora.


HIGHER EDUCATION SUPPORT AMENDMENT (FEE-HELP LOAN FEE) BILL 2010

The Higher Education Support Amendment (FEE-HELP Loan Fee) Bill 2010 amends the Higher Education Support Act 2003 (the Act) to implement the Government’s decision to increase the loan fee from 20 percent to 25 percent for undergraduate courses.

The amendment will give effect to the recommendation of the Review of Australian Higher Education to increase the loan fee for FEE-HELP for fee paying undergraduate students to 25 per cent.

The Bradley ‘Review of Australian Higher Education: Final Report’ noted that the implied subsidy offered through a HELP loan increases significantly with the level of debt. This means the Government subsidy varies considerably by course.

Tuition fees for undergraduate fee paying courses can be substantially higher than Commonwealth supported places. When the level of HELP debt rises significantly, the taxpayer-funded subsidies for the loans also substantially increase.

The Government initially did not take up the recommendation to increase the loan fee at a time when the effects of the economic downturn were not clear and the focus was on increasing investment in access and equity measures.

An increase in the loan fee will enable the Government to recover more of the taxpayer subsidised cost of providing FEE-HELP loans.

Even with a five per cent increase in the loan fee the conditions of the Government’s FEE-HELP scheme continue to provide an extremely favourable income contingent loan for students. If students do not repay their loan, the Government meets the cost.

The FEE-HELP loan fee applies only to fee paying domestic students enrolled in an undergraduate course. Undergraduate courses are longer in duration and the loan incurred may be substantially higher, taking longer to repay based on the income-contingent nature of HELP loans.

Students do not have to start repaying their HELP loan until their income reaches the minimum repayment threshold of $43,152.

The increase in the FEE-HELP loan fee will apply to FEE-HELP debts incurred on or after 1 July 2010 in relation to units of study whose census dates are on or after 1 July 2010.

The majority of students will not be affected by the change which will impact only on undergraduate students who choose to use FEE-HELP for their tuition fees in a fee paying place.

I commend the Bill to the Senate.


TRANS-TASMAN PROCEEDINGS BILL 2009

Introduction

Australia’s links with our New Zealand neighbours are strong and diverse.

The relationship extends across government, business, community and sport, and is a rock-solid alliance.

In fact, I’m very happy to welcome the New Zealand Minister for Justice, the Hon Simon Power who is with us here in the chamber today.

The Australia New Zealand Closer Economic Relations Trade Agreement cemented these links, and the trans-Tasman economic and trade relationship has prospered since its inception in 1983.

That Agreement, and a range of others under it, has lead to a steady increase in the movement of people, assets and the provision of services across the Tasman.

It is inevitable that such a close relationship will give rise to the greater possibility of legal disputes with a trans-Tasman element. But, despite our close relationship, there are currently only limited civil legal cooperation arrangements in place between Australia and New Zealand.

In many ways our two legal systems treat trans Tasman disputes in the same way as they would treat a dispute involving any other foreign country.

This is clearly something that must change. We need structures that reflect our close relationship, our shared common law heritage and our strikingly similar legal systems.

With the introduction of the Trans-Tasman Proceedings Bill 2009, this is now set to change.

The Bill will operate alongside its companion New Zealand legislation introduced into the New Zealand Parliament yesterday.

Together, both Bills will significantly enhance current arrangements and improve access to justice by establishing a cooperative scheme to make trans Tasman litigation simpler, cheaper and more efficient.

Trans-Tasman Agreement

Most significantly, the Bill implements into Australian law the Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement, which I had the pleasure of signing in Christchurch on 24 July 2008.

The Agreement draws on the commonalities between the legal values and institutions in Australia and New Zealand, and enshrines a range of innovative reforms which will benefit litigants in both countries.

Reforms in the Bill

The Bill sets up a ‘trans-Tasman regime’ for the conduct of court proceedings between Australia and New Zealand. The regime is modelled on the cooperative scheme established by the Commonwealth Service and Execution of Process Act 1992, which regulates legal proceedings between Australian States and Territories.

This Bill includes a range of measures to improve the procedure for conducting trans Tasman litigation.

For example, the Bill allows a plaintiff to serve Australian civil initiating process on a defendant in New Zealand without having to seek leave, or prove that a particular connection exists between the proceeding and the Australian court.

Importantly, the Bill, along with its New Zealand equivalent, broadens the range of judgments able to be recognised and enforced, and simplifies the process for this.

Currently only money judgments can be enforced between the two countries - but this can often leave a party without an effective remedy to which they are entitled. The regime addresses this problem by allowing non money judgments, like injunctions, to be enforced. Eligible judgments will also be subject to a more streamlined process of registration.

The Bill also allows the greater use of technology in trans-Tasman proceedings. In many cases, parties will be able to participate in proceedings in the other country without having to leave their home jurisdiction.

Regulatory enforcement

The Bill also enhances the effectiveness of regulatory institutions in both countries.

It allows for certain civil pecuniary penalties and criminal fines in regulatory matters to be registered between the two countries. For example, penalties imposed for serious breaches of the Australian Trade Practices Act or New Zealand Commerce Act.

These reforms are recognition of the mutual interest our two countries have in the effective operation and integrity of trans-Tasman markets and the enforcement of judgments imposed for breaches of such regimes.

Incorporation of existing legislative provisions

Along with implementing the Agreement, this legislation rolls in existing provisions dealing with Trans-Tasman proceedings, to create a ‘one-stop shop’ for laws governing the conduct of trans Tasman disputes. This will make proceedings simpler for litigants.

The Evidence and Procedure (New Zealand) Act 1994 currently sets up a cooperative regime for the taking of evidence and service and enforcement of subpoenas between Australia and New Zealand. That Act is moved into the Bill with minor amendments and subsequently repealed.

The Federal Court Act 1976 currently has special rules for the conduct of proceedings regarding damage to competition in trans-Tasman markets. These rules have been moved into the Bill, with minor amendments, and will continue to operate to facilitate effective resolution of market proceedings.

Stakeholder support

This project has benefited from consistent support from stakeholders in both countries.

In particular, I would like to acknowledge the engagement of the States and Territories in developing the framework for the regime and the collaborative way in which the Agreement has been implemented in corresponding legislation in both countries.”

And of course I again recognise the support of the New Zealand Government, driven by Simon Power.

Conclusion

The regime established by this Bill, and its New Zealand equivalent, demonstrates the strong shared respect for, and confidence in, each others justice systems and regulatory institutions.

The legislation underpins an unprecedented level of legal cooperation between out two countries. It is also consistent with the Government’s Strategic Framework for Access to Justice.

The Trans-Tasman Proceedings Bill, and its New Zealand equivalent, stand as an example of what can be achieved when two countries commit to finding more efficient and cost effective ways to resolve cross-border disputes.

I commend the Bill.


TRANS-TASMAN PROCEEDINGS (TRANSITIONAL AND CONSEQUENTIAL PROVISIONS) BILL 2009

Introduction

The Trans-Tasman Proceedings (Transitional and Consequential Provisions) Bill 2009 contains a range of transitional measures and consequential amendments to support a smooth transition to the new arrangements established by the Trans-Tasman Proceedings Bill 2009.

The Bill makes clear how various aspects of the regime will apply to the conduct of trans-Tasman legal proceedings commenced before the Trans Tasman Proceedings Bill comes into operation.

It also makes consequential amendments to existing legislation. The primary Bill is designed to be a single point of reference for people on how to conduct trans-Tasman legal proceedings. This Bill repeals the Evidence and Procedure (New Zealand) Act 1994, and the trans Tasman market proceedings provisions of the Federal Court Act 1976. These provisions have been moved into the primary Bill with minor amendments.

This Bill is necessary to ensure the Trans Tasman Proceedings Bill 2009 can operate as intended.

I commend the Bill.

Ordered that further consideration of the second reading of these bills be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.

Ordered that the Trans-Tasman Proceedings Bill 2009 and the Trans-Tasman Proceedings (Transitional and Consequential Provisions) Bill 2009 be listed on the Notice Paper as one order of the day and the remaining bills be listed as separate orders of the day.