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Tuesday, 21 December 1993
Page: 5445


Senator GARETH EVANS (Minister for Foreign Affairs) (5.15 p.m.) —There is no specific reference to bag limits, but there is a reference, which I have read out to Senator Panizza, which limits it to `satisfying their personal, domestic or non-commercial communal needs'. What that will mean, in terms of the amount of the particular game, fish or whatever is taken, will obviously depend on the particular circumstance. But they are reasonably easily ascertainable limits and the sort of thing that courts, tribunals and so on are used to dealing with and applying. It is just on the balance of reasonable knowledge about how much is fair enough in terms of satisfying that sort of criteria.

  Obviously, one would not have to engage in the same sorts of start-up costs that are involved for professional abalone fishing ventures. Normally a fishing operation of a certain kind—abalone is a very good example—can be done only on a commercial and licensed basis where everybody else is prohibited and if one is going to do it at all, one has to have a big start-up fee at the threshold to get into the game and so on. The whole point of this is to say that, notwithstanding all those normal restrictions, native titleholders can bypass them, provided that—and the proviso is very important—it is on a very small, intimate and personal scale and they are doing it pursuant to a genuinely held native title right.

  It is not just any Aboriginal people who can henceforth descend upon the abalone fishing waters and go for their life. They are only able to justify the taking if it is part of the particular tradition associated with their communal group and they can establish a native title right accordingly. So there is still a long way to go and I would not advise people who might be tempted to take advantage of this clause to rush off and do so without considering their legal position very carefully indeed.


Senator Panizza —It hasn't stopped some people before, not necessarily Aborigines.


Senator GARETH EVANS —No, and some of them are subject to prosecution. There have been some interesting and well publicised cases of that kind, but there has been no defence available to anyone in the past. We believe—we agree with the Greens in this respect and I understand the Democrats also support this particular clause—that there is ample justification for extending it in this way. There is no requirement that the method of hunting, fishing or gathering be confined to traditional means. Life moves on, the world moves on, and with it techniques for doing these things. There is no intention to deny that right.

  Whether or not the exemption that is set out here would extend to an exemption from obtaining the permit for the firearm in question is, I think, extremely doubtful. What is being referred to here is an exemption from the prohibition of carrying out some activity. It is not the possession of the firearm so much as the actual shooting of the firearm to take game or whatever. But I do not want to give yet another kerbside opinion—I have given a few hundred of them in the last few days—that would be a matter to be sorted out subsequently.

  So far as fishing is concerned, I will make a general point. I think we will be in a bit of trouble with amendment 45 to clause 197 unless the opposition has a bit of a think about supporting this. The Greens have indicated opposition to it and we cannot carry it without the opposition's support. This is a very explicit industry provision. It is another one of a kind. Those opposite have already knocked three of them off by taking the stance that they have in relation to this legislation. I draw their attention to our amendment No. 45, which is intended to clarify the existing 197(1)(c). It presently reads:

. . . existing fishing access rights—

which would include both public and private rights—

prevail over any other public or private rights.

This amendment makes it clear that it is statutory fishing rights—not existing fishing access rights—which prevail over any other fishing rights. In other words, this clarifies that states and territories may act to confirm that statutory fishing rights prevail over any other kind of fishing rights, and that includes any native title rights that may exist. I think that is a pretty important principle from the point of view of the fishing industry and the certainty that it wants to inject. That would not cut across the debate we have just been having about our proposed new clause 196(a), because in that context there is a specific exemption provided for certain kinds of fishing activities in certain circumstances, as with other kinds of hunting activities. This is clearly a protective provision designed to clarify the law and to assist the industry to give it a degree of certainty.

  It looks as though this provision will go down unless there is a willingness to support it on the opposition side. I know Senator Panizza has a close and intense interest in the fishing industry, which he demonstrated again in the contribution he has just made. Maybe as a last dying gesture on the bill, he would contemplate coming across and bringing a couple of his mates with him in order to make a hero of himself with the fishing industry in WA. If he does not, I guess this is another particular matter which we will need to look at in the new year as part of some reviewing legislation. But I do make that invitation. The opposition has already scored three ducks in terms of major industry clauses which it has been asked to support; this is a chance to avoid the fourth.