Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Finance) Share this | Hansard source

I was on it as of today. But, given that I have made more decisions under this act than any other member of this parliament, I do know something about how it operates and I do know how it can get the balance right between making sure we create jobs and making sure that we protect the environment.

The concept put in that speech, which has been put in a number of speeches from government members, is that somehow industry is being held back because of constant litigation. Of all the decisions that I made in my time as environment minister—including decisions that I made with respect to INPEX, Prelude, the Olympic Dam and the Gladstone projects—only one was successfully challenged. It was successfully challenged at the very end of my time. Mark Butler was the Minister for the Environment by then. The reason for the decision was not that there was anything wrong with the conditions or the reasons; it was that one of the documents that should have been included in the final brief was not included. So the decision was reworked and remade and, within a few weeks, certainty was given to industry again.

What is extraordinary is that the mistake that was made by the government in the Adani decision was apparently an identical mistake. I personally do not hold the Minister for the Environment responsible. I know how big those briefs are—and, realistically, I want the environment minister to be going methodically through all the conditions. It is a clerical check that would have been done by the department which was clearly done in error. It is probably, if anything, a reminder to the parliament of what can happen if you spread your Public Service too thin. Ordinary checks that need to be made can well be overlooked.

But the Adani decision could have been fixed in a number of weeks. Instead of just fixing it and providing certainty, the government have talked down confidence in projects in Australia in a bizarre way. They could have talked this up and just said, 'Yes, it is an administrative error in terms of what was included in the final brief and we are going to redo it and the decision will be made again in a few weeks' time,' and Adani would have confidence. Instead, the government sends a message to investors around the world that this is a disaster and we need to change the law and put forward a legal change that is very likely to not end up passing the parliament. This is a complete talking down of jobs, investment, industry and certainty.

When people talk about lawfare and about it being a problem that has been brought on by environmental activism, they miss the fact that the orders were not a final judicial decision ruling in favour of the appeal for the environmental movement. The orders were consent orders sought by the Commonwealth. In the Adani case, the Commonwealth realised they had made a decision contrary to law and, having realised that, asked for this decision to be made. The court agreed to the consent orders and, having agreed, the government then said, 'Outrageous! How on earth could this have happened?' The court gave the consent orders that the government asked it to provide and then, having provided those consent orders, the government went on its new level of outrage—because this is a government that knows how to take a fight but does not know how to reach an outcome. It does not know how to reach a solution. The change here is unnecessary. This change is bad for the environment and, ultimately, in a final irony, is bad for industry as well—and I will work through each of those.

Firstly, though, I want to comment on some of the rhetoric that we have heard in some of these speeches, where members have said, 'If you are opposing this you are chasing cheap, environmental, green inner-city votes.' I do not know how that relates to Alan Jones. I have got to say there was a period when Alan Jones would praise me on his radio station—in the last few weeks, I think it is fair to say, that period has ended. But on this one, I am willing to give Alan Jones praise. It is not particularly forthcoming my way these days, but he is completely right: on environmental issues, all Australians have a right to care. If anyone thinks that the only people who have a right to care about the Great Barrier Reef are the people who live next to it, they do not understand what happened when Joh Bjelke-Petersen wanted to drill the Great Barrier Reef. If people think that the only people who will care about Tasmania's forests are people who live in Tasmania, they do not understand that the Tasmanian tourism industry draws people from all around the nation and the world. If people think that the only people who will care about the Daintree Rainforest are the people who live there, they are wrong; or the only people who care about Kakadu are the people who live in the Northern Territory, they are wrong.

We all have a right to be proud of Australia's environmental icons. Ultimately, what this legislation seeks to do is create a situation where, if a minister for the environment makes an illegal decision, they want it to be able to stand. That is what this is about. Ultimately, the challenge here is from the government, and what is upsetting them is, if an illegal decision is made by a minister, it could be challenged in a court.

What sort of parliament wants to create a situation where a minister will make decisions under legislation which have been passed by this parliament but make them contrary to that legislation, and we want to make an amendment that says: if they do that, that decision will stand? Very few decisions will be successfully challenged in court. The vast bulk of decisions that I made were challenged in court. One was challenged successfully.

But the shift in standing, the reason that the Howard government—that radical environmentalist John Howard—included the standing rules that are in the EPBC Act now was for a very good reason: if you do not have the standing provisions, what you end up with is a worse situation. What happens is you get a court case first establishing whether or not the party has standing. You have uncertainty for the project for that entire period. If they end up being given standing, then and only then do you get to the merits of the case.

The reason the Howard government included this provision in the legislation was to make sure that, if a decision was going to be successfully challenged, it is in everyone's interests that that happen immediately and quickly so you do not have a long period dealing with standing and you get immediately to the merits of the case. If, as in the situation with the Adani case, the government realise that they have got a decision wrong, then they can seek consent orders, have the decision made and get on with making a new decision—get on with doing it properly—which they would be able to do with respect to Adani.

How bad did it use to be in terms of uncertainty when you did not have a clear standing provision? The best example is probably the case of Australian Conversation Foundation v Commonwealth—this was way back in the eighties. The decision was made on 30 July 1978. The decision on standing was made on 13 February 1980. So from 1978 to 1980, on something where they ended up not being given standing, there was uncertainty over the project anyway. Since that time, the standing common law principles have become less restrictive. It may well be the case that, in a similar circumstance now, you would end up getting standing. So you get your first two years arguing whether you have got standing and, having got it, you then have the argument about the merits. Potentially, for an investment cycle for a project from the time of an environmental decision to the time of them knowing whether or not it is actually going to go ahead, you could have a period of three years.

My view on these issues is that it is in no-one's interest for there to be ongoing uncertainty about a project. Environmental decisions should be made. They should be made properly under the act. Sometimes mistakes and errors will be made by ministers. Sometimes they will be errors for which the minister is fully responsible and sometimes they will be errors which were inadvertent or were new rulings, which were surprising from a court. But whatever that time frame is, you want to know as soon as possible. That is why the Howard government said: 'Let's not waste time with an argument about standing; let's give everyone standing straightaway—all the relevant groups that have already indicated an interest in the region. You can't invent a group after the fact but, if they've already been active and indicated an interest in the region prior to the decision, then they can have standing, and we get straight to the merits of the decision.'

In the merits of a decision at the moment, we are dealing with cases where the error was inadvertent. But consider if the error had been blatant. Consider if you have an environment minister who knowingly ignores a threatened species. For example, I had objections when I listed in Queensland and New South Wales the koala as a threatened species under this act. Campbell Newman went out and bagged me and different people were very critical of it. If an environment minister was dealing with a development in South-East Queensland and they decided to ignore the impact on the koala, who is going to have standing other than the property developers to be able to definitely take the case? You need to be able to resolve it quickly.

If an environment minister knowingly makes an unlawful decision, we cannot have a situation where the only people who might have an interest or standing under the law to take it to court are the very people who want the project to go ahead—unless this parliament is going to make a decision today and in this bill we think it is okay for a environment minister to act unlawfully. There is no doubt the proponent will always have standing, so if an illegal decision is made by an environment minister, the proponent will always be good with that. This legislation seeks to narrow whether or not anyone would be able to challenge it.

On this occasion we are talking about the Adani mine and a particular decision where the error was not in the final conditions. It was not in whether or not something had really been taken into account, because the environment minister had conditioned around the document that had not been included anyway. So this is not an issue like that—and I am not accusing the environment minister of making a decision like that. But under this change it becomes possible for an environment minister to ignore the impact on the Great Barrier Reef, to ignore the impact on a threatened species like the koala or to ignore the impact on an endangered wetland, let something through and have nobody who has legal standing to be able to challenge that even though it might be a concern to almost every other Australian around the country.

How on earth can a parliament say, 'We support there being legislation with all these conditions, but we don't support whether or not the environment minister will have to abide by them'? That is the impact we are talking about. The reality of it which would then flow in terms of the proponents themselves will be the delay in finding out whether or not they have certainty on the project. It will just take longer because you will have a protracted debate about standing before you ever get to the merits of it. At every angle this is an attempt from the government to wreck certainty for industry and create a potential for environmental considerations of the most iconic type to be completely ignored by a future environment minister. The parliament is being asked to legislate to allow an environment minister to ignore its legislation.

I cannot begin to think of the gravity, of the stupidity of what is before this parliament now. The government has decided to manufacture, where there had been certainty and this could have been certainty quickly, a crisis and create a lack of confidence for investment in Australia. They then decided the answer was, from industry's perspective, to make the time for certainty as long as possible and then decided that a possible outcome would be that an environmental consideration, no matter how iconic, could in the future be wilfully ignored by a minister for the environment and there would be no legal recourse.

This legislation does deal with extremists. It deals with an extreme ideology which says environmental considerations in the future should be ignored. You would never have found this under the Howard government. You only find this led by a Prime Minister who knowingly wants to attack the environment.

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