Senator JOYCE (Queensland—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.

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”.