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Saturday, 18 December 1993
Page: 5141


Senator GARETH EVANS (Minister for Foreign Affairs) (3.33 p.m.) —These are not the world's most complicated amendments. The basic linguistic change involved in just about every one of the amendments in the list I read out involves the deletion of three words only from the relevant clause, the words being `both sides of'. Clause 16 refers to `the land adjoining both sides of, or surrounding, any waters concerned'. The point of the exercise is to make that read `the land adjoining or surrounding any waters concerned'.

  The problem before was that the onshore regime, which has a number of different contexts in which it applies in this bill, was clearly applicable to lakes and rivers where there is land either side of them or surrounding them in an onshore context. The offshore regime by contrast, to which different consideration apply in the legislation, clearly extended to out at sea. It left in an ambiguous zone, not clearly defined as either onshore or offshore, the bays, the estuaries, the intertidal area between high and low tide and so on.

  So there was a hiatus in the legislation as drafted. One could ask how that hiatus managed to get there. I think it would be fair to say that the states—which after all are responsible for issuing all fishing licences in the onshore area, including bays, estuaries and intertidal areas that are close onshore—did not raise this issue with the Commonwealth during the really quite extensive consultations that were involved over last year, which is something that has slipped through the cracks. I think this is an area squarely within the jurisdiction of the states. It is just one of those things that happen. But I do not think the Commonwealth can be blamed for not picking up the existence of a problem. As soon as the legislation was exposed, particularly in the context of the Senate committee inquiry, as Senator Ian Macdonald has said, it did become apparent that there was an industry concern that the onshore regime was not clearly applicable.


Senator Panizza —On a point of order, Mr Chairman: the minister is giving a very interesting answer. We have filled up our side of the chamber pretty well today and I think the other side should do the same and get some government senators down here to listen to the minister.


Senator GARETH EVANS —If Senator Panizza has a look around him, he will see that there are two opposition senators and four government senators in the chamber at the moment. He has not done really well on that point. (Quorum formed) The main context in the legislation in which this issue arises is in terms of the definition of future acts and what can be done by way of affecting native title. For things that are clearly offshore, all acts are permissible; for things that are onshore, something can be done over native title only if it is done over a freeholder. That is the basic principle—the freehold equivalent test and so on. So it is important to sort out whether one is talking about onshore or offshore.

  There was this twilight zone that was not expressed in the legislation and it gave rise to concerns and uncertainty as to what the particular legal regime would be. Would it be the offshore test or would it be the onshore test? What we are clearly talking about with bays, estuaries and intertidal zones is onshore waters. They are in the same conceptual category as rivers, lakes and so on. So it is perfectly appropriate that the regime that applies to rivers and lakes applies to those particular areas.

  Have we succeeded in producing that result by the drafting? Senator Ian Macdonald worries about that. As I say, it is a very simple little linguistic exercise involved to remove the requirement from the definition of onshore waters that there be land either side. Once we get rid of that restriction, we have to have land on only one side of the water in question—not both sides. We have got to the stage of being able to embrace waters of this kind.

  The Department of Primary Industries and Energy, which represents the interests in these matters of the fishing industry, has told us that it is perfectly comfortable with the particular amendment. It believes it meets the concerns. Certainly, in the time that these amendments have been out and about—and there is intense interest in this from the fishing industry—we have heard no suggestion that we failed to do what people wanted us to do; namely, clarify the regime in question.

  Those opposite can carry on about amendments, but that is what the legislative process is all about. They do not like us bringing in bills, rubber-stamping them and going out the door again. They like to think that they are contributing something to the process by the business of parliamentary deliberation and, in particular, by the work of the Senate committees. Here is a very good example of a problem coming to light in the context of the Senate committee inquiry exercise: the government fixing it by a relatively simple drafting device, fixing a number of clauses simultaneously by very similar language and getting a result that everybody is comfortable with. I do not know what Senator Ian Macdonald is complaining about. I think he is being a bit unreasonable.