Statutes Amendment Bill

Members, we’ll come now to Part 7. This is the debate on clauses 24 to 35, “Amendments to Conservation Act 1987”. The question is that Part 7 stand part.

Thank you, Madam Chair. I’m sure my friend Dr Lawrence Xu-Nan will have something further to say. I’m just curious for a clarification here as to the need for this amendment, because it appears to me, if I’ve got it right, this creates an infringement offence called “Taking indigenous freshwater fish without authority”.

I think that the short name for indigenous freshwater fish is whitebait. At least, that’s the general view. Although there are, of course, other freshwater fish, the most fished freshwater fish is whitebait. I haven’t managed to trawl through the statute book, but it was always my understanding that it was already an offence to whitebait out of season.

Having had a chance to have a quick look at some of the other sections—26ZHB, “or an authorisation”, and so on—I understand that they’re essentially saying that where the season is open, you can go and get your whitebait providing that it’s, essentially, for personal use or even for sale, but within set rules: location, timing, and so on. Now, am I to understand that whitebaiting out of season to date has, in fact, not been an offence and this is the first time that we need this because there’s a gap? Or have I got that wrong? If I have got that wrong and it is already an offence to take indigenous freshwater fish without an authority, why do we now need this? That’s the question there: just, essentially, what’s the gap that we’re filling? Was there a gap? If there was, that’s surprising. If there isn’t, why do we need this section?

Thank you, Madam Chair. I’m a little, I guess, surprised by the member’s question, especially around the indigenous freshwater fish, because in 2019 the then Labour Government put through the Conservation (Indigenous Freshwater Fish) Amendment Act 2019. This amendment here in clause 34 relating to Part 6A of the principal Act is addressing the gap in the infringement regime that should have been amended by the amendment Act. The previous amendment omitted to amend Part 6A of the principal Act, which is dealing with the infringements. There is now a gap in the infringement regime as a result. So the penalty is actually consistent with other lesser offences under the principal Act.

Just while I’m on my feet, Madam Chair, I think I might just speak to clause 35 amending section 59 as well, because I expect a question on that. The amendment that we’re making there is to seek to align the Conservation Act with the Fisheries Act and remove any potential legal uncertainty that may be there. So the proposal that we have for that section is also just clarifying the status quo.

Thank you, Madam Chair, and thank you, Minister, for the clarification. Just an initial comment for the member who said that 1964 was a very good year, I would have assumed that for that member, 1974 would have been a much more appropriate year—i.e., because you look so young, just in case that was lost.

Now, just to the Associate Minister of Justice, in terms of clause 34, to clarify, the Minister’s saying that the “person must not take indigenous freshwater fish” is already in existence, but the infringement aspect wasn’t there, so hence this particular clause is adding 51CA(1) to add the infringement part of something that is already not allowed under section 26ZHB. That’s my first question.

My second question is just on clause 35, amending section 59. I really appreciate the Minister’s clarification, but I want to check in the current legislation, because this part in the principal Act refers to fisheries officers and honorary fishery officers. By deleting “to exercise powers in relation to freshwater fisheries”, is it because the current legislation actually has now inadvertently limited fishery officers and honorary fishery officers to freshwater fisheries only, but then by removing it, fishery officers and honorary fishery officers—because I know that they often also patrol harbours and coasts, etc.—they’ll actually now be able to exercise the power in saltwater environments. Is that why that bit was removed?

Thank you, Madam Chair. Just answering the last part of your question, Dr Lawrence Xu-Nan, the description of fisheries officers’ powers aligns with the Fisheries Act 1996. So we’re looking for consistency there.

And, yes, the offence for clause 35, creating an infringement offence, is to match the existing offences currently in section 26ZHB of the Conservation Act.

Thank you, Madam Chair. These changes to the Conservation Act 1987 are probably some of the more substantive changes in this bill, so I think that’s probably the reason that there are a few more questions on these changes. I thank the Minister for her earlier answers, too, because there were a few questions that I had that she’s now addressed in relation to this. Of course, the next part is also focused on Conservation Act changes as well.

The question that I really had is: the Minister said that these changes, especially in relation to offences, were to be put in because there was a gap in the piece of legislation that had previously been passed by an earlier Parliament—and I accept that. I just wanted to check whether—because another thing that I thought was that, obviously, in the last Parliament, the Resource Management Act was repealed, and there were a number of consequential changes to lots of different pieces of legislation as a result of that repeal, and, of course, there’s a number of references to the Resource Management Act in a number of additional statutes, not just the primary piece of legislation. I wanted to ask, was the reason for some of these amendments needing to be put back in place partly as a result of that subsequent repeal, and then the fact that the Resource Management Act is now—until it is again repealed, which we understand it may be by this Government—the primary piece of legislation? That’s specifically in relation to clause 33.

The other question I had is just in relation to these fines, and can I just check with the Minister that these fines that have been imposed—because these are quite significant fines in this Act. It’s essentially making someone liable, if they’re convicted in respect of offences under this Conservation Act, for a term of imprisonment “not exceeding 2 years and a fine not exceeding $100,000”, and also to a further $10,000 fine. I just wanted to clarify: is that new, is that a rewording, or is that filling the gap and making this particular offence that is under the Conservation Act consistent with existing law? I’ll refer to my colleague Dr Duncan Webb, who I would say is more experienced in criminal law, but this does appear to be an unusual provision to have within a statutes amendment bill and also in the Conservation Act. I’m sure that there’s a very, very logical reason for that, but I just thought, because it is a substantive restriction on liberty, that we should probably make sure that we have that exactly well clarified in this type of bill.

Another question I had was in relation to clause 32 and whether these responsibilities that are put in place in relation to the Fish and Game Council—in relation to their focus on sustainability and the impacts of fishing—are not new provisions thought up under this Act but are somehow adding consistency or restating the policy reasons that are already in place within this new section, section 7, which comes after section 17M(6). I’m just wondering if the Minister did have some more advice and if she might be able to just assure the House, really, in relation to these provisions.

Thank you, Madam Chair. My understanding is that clauses 25 to 32, which were in the draft, have been removed. It could be that I’m looking at something different but maybe the member could just clarify a little bit.

In relation to the other questions that the member asked, she made a comment about these being potentially substantial changes. They’re not. We’re basically clarifying the status quo, and with regard to the infringement offence, the offence already exists. We are simply creating an infringement offence, and I think an infringement offence is much better for a person to be able pay—an infringement or a fine—than having to go to the District Court. So that’s why there are changes there.

Part 7 agreed to.

Part 8 Amendment to Conservation Amendment Act 1996