Chapter 1
Background to the inquiry and the bill
Conduct of the inquiry
1.1
On 23 November 2010 the Senate referred the Environment Protection and
Biodiversity Conservation Amendment (Prohibition of Support for Whaling) Bill 2010
to the Environment and Communications Legislation Committee for inquiry and
report by 24 March 2011.[1]
1.2
The bill is a private senators' bill introduced by Senator Siewert and
Senator Bob Brown. It was first introduced in the Senate on 4 February
2010 by Senator Siewert and Senator Abetz, but lapsed at the end of the 42nd
Parliament before being debated. It was reintroduced on 29 September 2010.
1.3
The committee advertised the inquiry on its website and in The
Australian, and wrote to relevant organisations inviting submissions. The
committee received five submissions (see Appendix 1). The committee thanks
submitters for their contribution.
Description of the bill
1.4
At present it is an offence to kill, injure or interfere with a cetacean
within the 'Australian Whale Sanctuary'. The Australian Whale Sanctuary is
generally the area to 200 nautical miles off the coast of Australia and its
territories, including the Australian Antarctic Territory.[2]
Furthermore, an Australian person, ship or aircraft may not kill or injure a
cetacean anywhere outside the Australian Whale Sanctuary.[3]
1.5
The bill amends the Environment Protection and Biodiversity
Conservation Act 1999 (EPBC Act) to make a new offence of
providing 'any service, support or resources to an organisation engaged in
whaling'.[4]
1.6
In the new offence, 'whaling' means:
...any activity, or any activity undertaken as part of a
venture, the intention of which is to kill, injure, take, trade or treat
whales, whether for commercial or other purposes, and includes:
(a) any action undertaken with the
intention of contravening section 229, 229A, 229B, 229C, 229D or 230 [the
existing cetacean related offence provisions in the EPBC Act], even if no such
contravention occurs; and
(b) any activity undertaken by or
on board a foreign whaling vessel.[5]
1.7
The penalty is imprisonment for not more than two years and/or a fine of
not more than 1000 penalty units.[6]
1.8
Exceptions to the existing offence provisions (for example, actions that
are necessary to prevent a risk to human health or to deal with an emergency),
also apply to the new offence.[7]
1.9
The bill arises from an incident in the 2009–10 Antarctic whaling
season, in which Japanese whalers reportedly hired aircraft in Australia to
track the movements of anti-whaling protest ships.[8]
According to its promoters, 'the bill fixes a glaring gap in our current laws
and is a necessary measure to ensure that those responsible for the slaughter
of whales in our Southern ocean receive no assistance from Australia'.[9]
Comment of the Scrutiny of Bills Committee
1.10
The Senate Scrutiny of Bills Committee reviews all bills in relation to
(among other things) whether they trespass unduly on personal rights and
liberties.[10]
The Scrutiny of Bills Committee commented on this bill:
Item 1 seeks to make it an offence if a person 'provides any
service, support or resources to an organisation engaged in whaling.' The
explanatory memorandum states that the intention of the proposed section 'is to
make unlawful the provision of any assistance to a whaling venture...'.
The Committee prefers that proposed offences are specific so
that the parameters of the prohibited conduct are as clear as possible, but
notes that the provision reflects the policy intent to capture any assistance
given to whaling.
Since the bill appears to be seeking to implement what is a
clear policy decision, the committee leaves to the Senate as a whole any
further consideration of this issue.[11]
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