Chapter 3

Discussion of issues

Summary of submissions

3.1        The Humane Society International and the Conservation Council of South Australia supported the bill, on the grounds that Australia should 'take every action to promote its long-standing anti-whaling position', and the amendments would 'enable the government to take strong and swift action should the need arise in the future'.[1]

3.2        Other submissions were concerned that the legal ramifications are unclear, and the offence may be too broad.

3.3        The Department of Sustainability, Environment, Water, Population and Communities (SEWPAC) submitted that the new offence provisions are 'duplicative and excessively broad', and the existing provisions in the EPBC Act and the Criminal Code are adequate to prosecute whaling offences.[2]

3.4        SEWPAC, the Australian Maritime Safety Authority (AMSA), and the NSW Department of Environment, Climate Change and Water (DECCW), were concerned that the offence may catch activities which should not be offences.

Concerns about the definition of 'service, support or resources'

3.5        The new offence is to provide any 'service, support or resources' to an organisation engaged in whaling. 'Service, support or resources' is not further defined.[3]

3.6        AMSA was concerned that the offence could catch AMSA's activities such as providing radiocommunications services, navigation warnings and meteorological warnings, or reissuing an expired statutory certificate. AMSA suggested that either:

• 'services, support or resources' should be defined to exclude the statutory functions of Commonwealth agencies; or
• under section 231 (exemptions from the offence provisions), Commonwealth agencies generally, not only their law enforcement actions, should be exempt.[4]

3.7        Similarly, the New South Wales Department of Environment, Climate Change and Water (DECCW) was concerned that the offence could catch a broad range of activities by government agencies, companies or individuals, such as 'refuelling, restocking and providing telecommunications services to vessels'.[5]

3.8        SEWPAC argued that the offence 'would also potentially capture very minor forms of assistance (including legal services, training, cleaning services and taxi services) which may be unconnected with the whaling activities of the organisation'.[6]

The offence goes beyond existing whaling offences

3.9        The existing whaling related offences in the EPBC Act are narrowly defined as acts that take or interfere with a cetacean, or result in death or injury to a cetacean.[7]

3.10      The proposed new offence is to provide any service, support or resources to an organisation engaged in 'whaling' as defined. '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 offence provisions], even if no such contravention occurs; and

(b) any activity undertaken by or on board a foreign whaling vessel.[8]

3.11      In the bill, 'whaling' as defined is not itself an offence, and it could include acts that are outside the scope of the existing offences – for example, preparing a whaling expedition which is cancelled; carrying out a whaling expedition which does not catch any whales (subject to comment below concerning attempted offences); or 'treating' a whale by carrying out an autopsy on a whale that has died of natural causes.[9]

3.12      This means that a person could commit the new offence of providing services etc. (for example, providing assistance to a planned whaling expedition), in circumstances where the party being serviced does not itself commit an offence (for example, because the expedition is cancelled). In submissions it was implied that this is an illogical outcome.[10]

3.13      It should be noted that under general provisions in the Criminal Code, the EPBC Act offences include the offence of attempting to commit an offence.[11] This raises the possibility that 'undertaking a venture, the intention of which is to kill whales' could be an 'attempt' offence, or could include an 'attempt' offence. In that case, it might be argued that it is reasonable to make providing services to the venture an offence as well.

3.14      However, an 'attempt' offence requires that a person's conduct must be 'more than merely preparatory'.[12] Whether conduct is more than merely preparatory is a question of fact – that is, it would be for a court to decide, in the circumstances of the case, at what point between planning an expedition, and unsuccessfully chasing a whale, an 'attempt' offence is committed.

3.15      So it remains a real prospect that a person could commit the new 'providing services' offence, in circumstances where there is no offence by the party being serviced – either because the conduct of the party being serviced is not an offence in any case (it is outside the scope of the existing offences, as in the example of the autopsy); or because it is 'merely preparatory' to an attempt.

3.16      SEWPAC also noted that defining 'whaling' based on the intention may make it difficult to prove that an offence has been committed given the need to prove the intention of the whaling organisation:

As a consequence the Department does not believe that the Bill would necessarily increase the likelihood of successful prosecution of people participating in whaling activities.[13]

The offence goes beyond existing aiding/abetting offences

3.17      The Criminal Code includes offences of attempting to commit an offence, and of aiding or abetting the commission of an offence by another. However, there is no aiding/abetting offence unless the substantive offence is actually committed. It is not an offence to aid or abet mere preparations. It is not an offence to aid or abet a failed attempt.[14]

3.18      The new offence could in some cases amount to 'aiding or abetting mere preparations to commit an offence', or 'aiding or abetting a failed attempt'. Thus it goes beyond the scope of the Criminal Code.

The offence applies to state/territory waters

3.19      Submissions noted that the new offence will apply to whaling activities in state/territory waters.[15] This is contrary to the provisions of the EPBC Act, which excludes state/territory waters.[16]

Committee comment

3.20      The committee supports Australia's current diplomatic and legal efforts to end Japanese whaling in the Antarctic. However the committee does not think the bill is suitable to aid that purpose.

3.21      The committee agrees with concerns that the new offence provision is both unclear and too broad. It may criminalise innocuous activities – for example, AMSA's navigation warning or radiocommunications services – or activities unconnected to a whaling organisation's whaling activities.

3.22      The committee agrees that it is unsound to create a 'providing services' offence which may apply in circumstances where the party being serviced does not itself commit an offence.

3.23      The committee is concerned that the new offence could in some cases amount to an offence of 'aiding or abetting mere preparations to commit an offence', or 'aiding or abetting a failed attempt'. This is contrary to the Criminal Code, which rejects the idea that these are offences. It should not be accepted without thorough consideration of the broader implications for consistent criminal law.

3.24      For all of these reasons the committee does not support the passage of the bill.

Recommendation

3.25      The committee recommends that the bill should not be passed.

Senator Doug Cameron
Chair

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