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Tuesday, 11 November 2008
Page: 9

Senator JOYCE (Leader of the Nationals in the Senate) (1:32 PM) —The issue here is a little bit complex. I dare to say that I will also be asking the minister for advice on some of the following issues. The issues surround what I believe is not only an onerous and very prescriptive statement proposed for a certain act but also a model of prescription that could be taken into other sections of law. It could set a very dangerous precedent in Australia. I also note that the government itself is proposing an amendment to this. I hope that in discussing this people see it in the light of how they would feel if this was a prescription in other sections of law, even terrorism laws and laws such as that. As it stands, item 9, subsection 3(1) of the bill says:

fishing means any of the following:

(a)   searching for, or taking, fish;

(b)   attempting to search for, or take, fish;

(c)   engaging in any other activities that can reasonably be expected to result in the locating, or taking, of fish;

(d)   placing, searching for or recovering fish aggregating devices or associated electronic equipment such as radio beacons;

(e)   any operations at sea directly in support of, or in preparation for, any activity described in this definition;

(f)   aircraft use relating to any activity described in this definition except flights in emergencies involving the health or safety of crew members or the safety of a launch, vessel or floating craft of any description.

Although it may be put aside by the court, the inclusion of aircraft use in attempting to search for fish is an absolutely ridiculous concept. Someone could be flying over the coast, looking out of the window and saying, ‘I’m now over a green zone and I’m looking for fish,’ and they would be engaged in a criminal activity. This is prescriptive to the nth degree.

I acknowledge that the government must have seen the same thing and have put forward an amendment. The question now is, however, whether this article in this amendment to the Great Barrier Reef Marine Park Act 1975, or GBRMPA, would be relied upon for a criminal conviction or whether a criminal conviction would actually relate to something defined in the zoning plan. Which article would the courts use for the interpretation of this action? If they would use the zoning plan and not GBRMPA, then unfortunately both my amendment and the government’s amendment are without cause, and obviously I would therefore look for another avenue to take. The amendment proposed by me is also on behalf of other people in the opposition who have the same concerns—not so much pertaining to fishing but to an overprescriptive definition. If you allow that on one issue, you must be prepared to see it later on in law on other issues. If the court would rely upon GBRMPA then it is the government’s definition as opposed to mine.

I have put both definitions beside one another as a means of comparison. I see that, in the government’s definition, they have certainly curtailed the initial onerous definition of item 9, subsection 3(1) with a new subsection 3(1)(c). However, in so doing, it is still talks about ‘engaging in any activity in connection with taking or attempting to take fish’. I still see that as being overprescriptive. Does ‘engaging in any activity in connection with’ mean that, if I am on a boat with someone who, whilst on the trip, says, ‘I’m going to go fishing in a green zone,’ I am ‘in connection with’ his activity? If I am driving along with someone and unbeknownst to me they have fishing equipment in the car and intend to go fishing, am I ‘in connection with’ that event? The definition of being ‘in connection’ with ‘attempting to take fish’ also heads into an area that is too grey. ‘Attempting to take fish’, I believe, is too grey.

That leads me back to the amendment that is proposed, which basically, in summary, takes away searching for or taking fish and puts in something substantive, which is just taking fish—the action itself. This has been taken out in lines 26, 27 and 29. In liaising with my colleagues it is a point where there is some comfort, and I thank Senator Brandis for his assistance on this. Basically what we are doing here is making sure that there is no room for an overzealous court to go beyond what is precisely the action. I put forward to the government first of all whether they will clearly spell out what is the requisite act on which the premise of a conviction would be based. Secondly, in going through the explanatory memorandum and trying to define it myself, I notice that they talk about the moving of the definition by the GBRMP Act section 38CA to the interpretation section. Is the interpretation section, as noted in the explanatory memorandum on page 53 of 73, the zoning plan? I think those things need to be cleared up. If the GBRMP Act is the requisite act that will be relied on then I will continue forward with my amendment. If it is not the requisite part but it is actually the zoning plan, then neither my amendment nor the government’s amendment will have any effect.

The TEMPORARY CHAIRMAN (Senator Humphries)—Senator Joyce, do you seek leave to move your three amendments together?

Senator JOYCE —I seek leave to move the amendments at this stage. I suppose I can seek leave to withdraw them later on.

The TEMPORARY CHAIRMAN —There being no objection, leave is granted.

Senator JOYCE —by leave—I move the amendments (1), (2) and (3) on sheet 5600:

(1)    Schedule 6, item 9, page 114 (line 26), omit “searching for, or taking, fish”, substitute “taking fish”.

(2)    Schedule 6, item 9, page 114 (line 27), omit “search for, or take, fish”, substitute “take fish”.

(3)    Schedule 6, item 9, page 114 (line 29), omit “locating of, or taking of, fish”, substitute “taking of fish”.