Mr McCLELLAND (Barton) (1.48 p.m.) —I can confirm that the opposition does support the Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005. In general terms the legislation, as the previous speaker indicated, seeks to ensure that the investigation, detention and forfeiture provisions of the Torres Strait Fisheries Act—which I will call the Torres Strait act—and the Fisheries Management Act are in line with those in the Migration Act 1958.
At present, fishing in the Torres Strait is regulated by the Torres Strait act, whereas elsewhere fishing is regulated by the Fisheries Management Act. While the provisions in these acts are similar, they are not identical, particularly in respect of some significant coercive search and seizure powers. This bill significantly enhances the powers of fisheries officers to detain and investigate suspected illegal foreign fishers and clarifies the powers fisheries officers may exercise. It is a welcome step, we believe, towards streamlining Australia's legislative response to preventing illegal foreign fishing.
Australia has faced an influx of foreign fishing arrivals for literally hundreds of years. In fact when Matthew Flinders arrived in the region that was to become Darwin, he found villages where people from Indonesia were drying fish and obviously had been doing so for some considerable time. This is a particularly significant issue for Australia. We have responsibilities and rights in our exclusive economic zone, which covers some 16 million square kilometres. It is an area more than twice the size of the land mass of continental Australia. It ranges across some 60 degrees of latitude and 100 degrees of longitude. It includes some 30,000 kilometres of coastline and about 12,000 islands. This extensive area is not only a massive environmental responsibility but also an economic opportunity. [start page 68]
We also have international responsibilities over that massive area. Under article 61 of the United Nations Convention on the Law of the Sea we have an obligation to ensure, through proper conservation and management measures, that we maintain the living resources in our exclusive economic zone and to ensure that those resources are not endangered by overexploitation. So illegal foreign fishing depleting those resources is obviously fundamentally crucial to the issue.
Under that Law of the Sea convention, we are authorised as a coastal state to detain foreign fishing vessels engaged in fishing in our exclusive economic zone. Article 73, which is given effect in domestic law, is reproduced in section 84 of the Fisheries Management Act 1991. Indeed, further justification for enforcing our fisheries laws in our exclusive economic zone against foreign-flag fishing vessels is provided in the UN Food and Agriculture Organisation's code of conduct for responsible fisheries management. So we have an international responsibility to preserve the sustainability of our fish stocks and also the right to exploit those fish stocks in a responsible way so that they are both managed and sustained into the future. The bill deals with the situation where at present foreign fishers may be detained under the Fisheries Management Act and once detained are automatically granted an enforcement visa which enables fisheries officers to bring them into the migration zone for further investigation without that act triggering what might otherwise give them entitlement to rights under the Migration Act to apply for residency, asylum and so forth. There is currently no power under the Torres Strait Fisheries Act to detain a person specifically to investigate foreign fishing offences. This bill will bring the Torres Strait Fisheries Act in line with the Fisheries Management Act by enabling fisheries officers to detain and investigate persons suspected of committing an offence under the Torres Strait Fisheries Act.
The bill will also enable fisheries officers to search and screen detained fishers for the purpose of obtaining evidence, weapons and other things that could be used to escape from detention. Authorised officers will be empowered to collect personal information from detainees for the purpose of identifying them. This information may be passed on to other agencies responsible for the detention and perhaps repatriation of those detainees. The bill will also amend the Torres Strait Fisheries Act to provide for the automatic forfeiture of vessels and other equipment used in foreign fishing offences—obviously an important disincentive for those who would otherwise engage in illegal foreign fishing in our exclusive economic zone. Provisions of this kind are currently set out in the Fisheries Management Act but not in the Torres Strait Fisheries Act. The offence of obstructing an officer will also be broadened and increased penalties will be applied, significantly increasing the coercive elements of the provisions.
The bill as it stands, however, does contain a number of provisions that do warrant close examination, including the extension of the powers of fisheries officers to independent contractors and their employees. While it is generally appropriate that officers of the Commonwealth exercising coercive powers have these extensive powers, we do have some concerns where these sorts of coercive powers are delegated on the basis of commercial contracts rather than appointment as an officer of the Commonwealth. These are issues which do require closer examination and for that reason we will be supporting a reference of this legislation for closer examination by the relevant committee of the House. [start page 69]
For instance, under the proposed legislation a new class of officer is created who may exercise powers related to fisheries detention. This will allow not only employees of the Australian Fisheries Management Authority and the Department of Immigration and Multicultural and Indigenous Affairs who are specifically appointed by the fisheries minister but also contractors and their employees, who may have these functions delegated to them, to exercise these coercive and detention powers. These officers will be authorised among other things to conduct strip searches of detainees, without the need to obtain a warrant, to find out whether the person being searched has `a weapon or other thing capable of being used to inflict bodily harm' or that may be used `to help the detainee escape from detention'. Indeed, under the bill these officers will have immunity from legal action in respect of anything done in the course of their duties, provided it is done in good faith. So these are broad coercive powers that involve also the powers of search and detention, and warrant examination particularly to the extent that these powers can be exercised by persons who are contractors or employees of contractors rather than duly appointed officers of the Commonwealth.
There is also some uncertainty in the bill as to whether there is an obligation to inform detainees that they may request legal advice in relation to their detention. Under proposed section 24 the person responsible for their detention must, it is specified, `provide the detainee with access to reasonable facilities for obtaining legal advice or taking legal proceedings in relation to his or her detention'. Under section 24, however, there is no obligation on detaining officers to actually inform detainees that they have this right. Section 9 of the bill provides that the existing protections under part IC of the Crimes Act 1914 continue to apply to the detained persons and, in particular, section 23G of the act provides that an investigating official must inform a detained suspect that they can obtain legal advice regarding their detention. Given that one of the stated objects of the bill is to provide for persons in fisheries detention to be given access to facilities for obtaining legal advice, as a matter of prudence it is our opinion that it may be useful to add a note in section 24 of the bill cross-referencing the detainee's rights under section 23G of the Crimes Act 1914. We draw the Attorney-General's attention to that matter.
Illegal foreign fishing is a great threat to Australia's fisheries resources and sustainability. If unchecked it could indeed pose a significant risk to our economic environment if, for instance, the circumstances of a ship arriving on our shore resulted in the release of some exotic pest or disease. That could have a devastating impact on our economy.
The SPEAKER —Order! It being 2 p.m., the debate is interrupted in accordance with standing order 97. The debate will be resumed at a later hour.