12 March 2013
Maritime Powers Bill 2012, Maritime Powers (Consequential Amendments) Bill 2012
Senator RHIANNON (New South Wales) (13:20): The Maritime Powers Bill 2012 and the Maritime Powers (Consequential Amendments) Bill 2012 seek to create a single enforcement area in Australia's maritime zones and, in some instances, on the high seas or in the territorial waters of a foreign state. The main bill will repeal duplicate enforcement provisions with other Australian legislation. The Maritime Powers Bill will establish an enforcement and authorisation system for maritime officers to operate under. With regard to instances of seizures and detention, the bill provides processes for dealing with items seized and people detained. The bill creates an offence regime for failure to comply with its provisions.
The Greens still have significant concerns about the breadth and content of the bill. Clause 14 of the bill has the potential to expand the reach of Australian domestic law in a way that is not mandated by international law—specifically, the United Nations Convention of the Law of the Sea, commonly known as UNCLOS. Clause 14 allows Australia to apply Australian law extraterritorially in the presence of an agreement between itself and another nation. Yet, no mention is made of UNCLOS nor the importance of any such agreement adhering to the text of the convention for the agreement to be valid. This should be deeply concerning for a nation that seeks to be a lawful international citizen. Clause 14 clearly manifests in an expansion of Australia's imprisonment of fisherfolk on the PNG border much in the same fashion as current operations on the Indonesian border.
A submission from the Australian Lawyers Alliance outlines the impact of this aggressive expansion of maritime powers along the Indonesian border. They set out how the expansion of powers will contribute to the desperation of communities in Indonesia to seek an income for their families and to the liability of the Commonwealth to pay compensation. There is also at least one instance, chronicled by the ABC in 2011, of an Indonesian fisher who was charged with unlawful fishing outside an Australian zone. He was later acquitted, returned to Indonesian and then began people smuggling, having lost his ability to fish.
By continuing practices like this Australia is helping to create a class of disenfranchised Indonesian sea captains who are available to the highest bidder. Invariably, many will end up as victims of predatory people-smuggling syndicates, captaining boats that are smuggling people to Australian waters. Eventually they are caught by Australian officers and subject to the mandatory sentencing that accompanies a people-smuggling conviction. In instances where disenfranchised fishers are turning to people smuggling, they are returning to their communities to suffer the social dislocation and isolation that comes with losing a primary means of subsistence.
By extending the aggressive enforcement measures to PNG, there is a real fear that we condemn these traditional fishers to a similar fate. Of equally grave concern is that these fishers who are detained under this regime often have absolutely no knowledge of the distinction between Australian enforcement zones and their coastlines, let alone that they are breaching any laws. More needs to be done to ensure that the fishing communities who are likely to be affected by this legislation when it is passed are educated about the change in circumstances. It is not appropriate to merely focus on enforcement when similar issues can be pre-emptively addressed through an effective education campaign, certainly at a much lower cost to the fishing communities concerned, and arguably the Australian public as well.
This expansion also seems to undermine the provisions of the Torres Strait Treaty, which affords protection to traditional fishing. The regional processing act may potentially allow for the detaining of Papua New Guinean citizens engaging in traditional fishing. I do welcome the provision of clause 95 for the treatment of persons under this act, namely that they be treated with humanity and with respect for their human dignity and are not subject to cruel, inhuman or degrading treatment. However, I do contend that, for clause 95 to be more than mere platitude, it needs to provide a closer examination of the measures the persons who come under this bill will be subject to. For instance, clause 75 states that restraint is not arrest, which seems to be a thinly veiled attempt to block claims of unlawful detention. To uphold a sense of human dignity like that referenced in clause 95, there needs to be greater accountability in instances where someone's personal autonomy is compromised under this bill. It needs to be made clearer under what circumstances 'restraint' becomes 'detention' and what remedy there is available for someone who questions the nature of his or her restraint under this bill.
Clause 9 contains a concerning reference to 'intention to contravene a law', but there does not seem to be an appropriate test for proving intention. Once someone is adjudged to 'intend to contravene the law', a maritime officer may then authorise the exercise of maritime power. Considering the authoritarian nature of maritime power, I argue that there needs to be a more stringent test for intention; otherwise, we cannot be sure we are not subjecting people to arbitrary arrest.
The implications in this legislation are actually huge. There seems to be a contradiction between the spirit of clause 95 and the operation of clause 100 and clause 101. Clause 100C provides that an officer does not need to inform the person of the offence for which they are arrested if the officer, and I quote, 'believes on reasonable grounds that the person does not speak English'. Clause 101 provides that the officer must take the person before a magistrate as soon as practicable. There is a distinct possibility that the operation of clause 100 in conjunction with clause 101 will see people charged before they understand what they are charged for. There need to be provisions to ensure that those detained by the Commonwealth have access to the same legal rights any Australian citizen would expect.
While we are discussing legal options for those detained, there is also concern around the remedies provided for people whose vessels have been confiscated by the Commonwealth. Clause 81 states that an application for things to be returned must be made within 30 days from the notice of Commonwealth ownership. I am concerned that this is not enough time considering the impoverished situation of those who are most likely to come under this bill. I do not think it is reasonable to expect that, within 30 days of seizure, these fishers will return to their homes, access a translator, obtain legal representation and then mount a legal challenge to the Commonwealth's possession of their property. They are also expected to undertake such a challenge at their own cost during a period when they have been deprived of their livelihood.
For all intents and purposes, this clause, alongside clause 91, which provides for the destruction of seized vessels, will serve to deprive people of the tools that sustain their livelihoods, further contributing to the cycle of poverty that they have been trying to get out of for themselves and their families. We are particularly concerned about any provisions that allow for the destruction of vessels, given that heavy-handed approach of Australian authorities in the past. There have been instances, much to our shame, where Australian authorities have destroyed up to 30 per cent of a community's fishing fleet. For many people who lose their livelihood in this way such a loss has huge implications and can result in considerable ongoing hardship. We should take great care before including similar provisions in this bill.
Failure to have a sustainable approach to the treatment of fishing boats means that the Commonwealth government is not utilising its expenditure effectively. The process of finding and destroying boats, imprisoning individuals, paying compensation to families, paying legal fees in such claims and then supporting the now disenfranchised communities through AusAID is a cyclical pattern that must be broken. This cycle is not only costing the livelihoods of regional fishing communities; it is also costing the Australian public. Such inconsistencies do need to be rectified and alternative policy solutions sought. With this legislation there is clearly a number of problems that need to be fixed up. Thank you.