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Thursday, 10 October 1985
Page: 1044


Senator HAINES(10.13) —The Australian Democrats have no objections to the Northern Prawn Fishery Voluntary Adjustment Scheme Loan Guarantee Bill, the Foreign Fishing Boats Levy Amendment Bill or the Fisheries Agreements (Payments) Amendment Bill, with which we are dealing cognately. I simply say, at the outset, that the extraordinary titles for some pieces of legislation that the Parliament can dream up never cease to amaze me. The nine-word title-I presume that is the short title-of the Northern Prawn Fishery Voluntary Adjustment Scheme Loan Guarantee Bill 1985 is a speech in itself. I suggest that maybe the Paul Hogan Prawn Bill would have been just as appropriate, particularly given what the Bill is all about.

I have no comments to make on the Fisheries Agreements (Payments) Amendment Bill 1985. I turn my attention for a moment to the Foreign Fishing Boats Levy Amendment Bill 1985. This Bill drew the attention in several ways of the Standing Committee on the Scrutiny of Bills. The Bill amends the principal Act to provide clear legal authority for collecting the levies specified in agreements licensing foreign boats. It empowers the Minister to declare foreign boats operated by, or on the instruction of, an Australian for the benefit of Australia, not subject to the levy.

The two clauses that were of some concern to the Scrutiny of Bills Committee are clauses 4 and 5. Clause 4 is criticised in Alert Digest No. 9 of the Scrutiny of Bills Committee because it contains an element of non-reviewable discretion. It is the habit of this Committee to draw the Senate's attention to things that we believe may not be justifiable, not necessary, or perhaps not beneficial to some people. The Minister can make under clause 4 a declaration for non- payment of the levy in the circumstances that I outlined a moment ago regarding foreign boats operated by, or on the instruction of, an Australian for the benefit of Australia. Those declarations will be tabled, but they will not be subject to parliamentary disallowance.

The Parliament habitually takes a fairly dim view of allowing too many decisions to be made by Ministers which are not reviewable by the Parliament when they are made. This one is no exception. Of course, even if the Parliament were in a position to disallow the regulation or the decision, I am not sure that it would be particularly well placed to judge anyway what circumstances were appropriate and what were not for declaration of non-payment, as we are somewhat limited in our resources and knowledge of such arcane matters as foreign fishing boats. Nevertheless, it applies an additional review procedure for people to ensure that decisions are not arbitrarily made with no appeal provision following.

Furthermore, in clause 4 there is no provision for review when the Minister refuses to make a declaration of any other sort; that is, there is no provision for a review of any other sort when the Minister refuses to make the sort of declaration that we are concerned with here. The Scrutiny of Bills Committee suggests that the review jurisdiction should be conferred on an independent quasi-judicial body like the Administrative Appeals Tribunal and, accordingly, drew the clause to the attention of honourable senators because, as it said, it may be considered to make rights, liberties and/or obligations unduly dependent on non-reviewable administrative decisions.

Clause 5 is also criticised by the Committee on the basis of inappropriate delegation of legislative power. Where the Minister enters into an agreement with a person other than a foreign government, the amount of the levy is to be the amount specified in the agreement. The agreements are tabled in Parliament but are not subject to disallowance.


Senator Grimes —Yes, they are.


Senator HAINES —Was that information forwarded to the Scrutiny of Bills Committee? It has erred drastically if it was not.


Senator Grimes —I will tell you about it later.


Senator HAINES —I thank the Minister. I am duly appreciative. To the Committee, however, there was a problem of inappropriate delegation of legislative power with regard to these agreements and in review by the Parliament. The background, as I understand it, is that three kinds of foreign boats exist for the purposes of this Act. What is known, I gather, as the `foreign boat proper' is the most numerous. These boats apparently fish here and then go home with their catch, which seems a fairly reasonable thing for them to do. The Minister enters into agreements with the foreign government corporations and the amount of the access fee is the major item in the negotiation. The amount is a percentage of the estimated value of the catch on the fairly obvious grounds, I would have thought, that the Government does not get much of a chance to negotiate after the damn things have been caught because the others head for home as fast as possible-also with very good reason, I would have thought.


Senator Boswell —They have monitors on board.


Senator HAINES —Do they count fish?


Senator Boswell —Yes.


Senator HAINES —I cannot cope with that.


Senator Collard —It is a bit late.


Senator HAINES —Yes, it is too late at night to cope with the concept of people on foreign fishing boats counting fish. I much prefer the idea that they all do it by negotiation on the estimated value of the catch.


Senator Boswell —The honour system.


Senator HAINES —Can we trust a fish? I think we had better get back to the debate and the questions that the Scrutiny of Bills Committee raised. There are two other classes of foreign boats which I will not launch into in case they also have people on them catching fish.


Senator Collard —Vessels, not boats.


Senator HAINES —It says `boats' in the document, but I will take the honourable senator's superior knowledge. The Committee in its Alert Digest No. 9 also said:

Clause 5 would insert a new sub-section 5 (2) providing that where the Minister has entered into an agreement with a person other than a foreign government with respect to the granting of licences to foreign fishing boats the amount of the foreign fishing boats levy-

It says boats, Senator, not vessels-

is to be the amount specified in that agreement.

As a member of that Committee I implicitly believe everything that it says. The Committee stated further:

The effect of this clause, taken together with the Fisheries Agreements (Payments) Act 1981 as amended by the Fisheries Agreements (Payments) Bill 1985-

I can understand why Senator Macklin went overseas-

is that the Parliament has delegated to the Minister the power to set, by agreement, the amount of the foreign fishing boat levy in certain cases. By virtue of section 9B of the Fisheries Act 1952 such agreements are tabled in Parliament but they are not subject to disallowance.

The Committee recognises that a similar regime already applies in respect of amounts in lieu of the foreign fishing boats levy payable under agreements entered into by the Minister and foreign Governments. However the Committee queries whether the effect of these arrangements is that the Parliament delegates its taxation powers in this area without retaining any effective control over the exercise of those powers.

That, I take it, is something that the Minister was disagreeing with a moment ago. The Committee also stated:

The Committee draws the clause to the attention of Senators in that it may be considered an inappropriate delegation of legislative power.

All that I would like to hear from the Minister is some reason why the Scrutiny of Bills Committee is wrong and why there is no need to take any action to amend clauses 4 or 5 so that there is some review or appeals mechanism for people affected by decisions made by Ministers, which apparently are not subject to parliamentary review, scrutiny or disallowance.