Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

I rise to oppose the Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015. The bill was introduced into the parliament on 20 August. It is a very simple piece of legislation. Its only measure, the only change it will effect to our law, is the simple repeal of one provision—section 487 of the Environment Protection and Biodiversity Conservation Act 1999. That provision provides extended standing to challenge decisions made under the EPBC Act. Its repeal will have the effect that the usual rules of standing under the Administrative Decisions (Judicial Review) Act apply to the review of decisions under the EPBC Act.

This may be a simple piece of legislation, but it tells you a lot about this government. The process by which the government came to introduce this bill tells you a lot about how this government is run and what its priorities are. The government rhetoric around this bill tells you a lot about its politics and about the way it wants to conduct public debate. Most importantly, the substance of this little bill tells you a lot about this government's values and about what sort of country it wants to build.

In his second reading speech the Minister for the Environment claimed that the bill is responsive to a trend of abuse of the EPBC Act—what he claims is a pattern of behaviour by certain environmental activists. This is transparently not the case. The government has not established any such trend. They have produced no evidence of what they claim is a flood of vexatious litigation. No, this bill is responsive to just one incident—the orders of the Federal Court of Australia on 4 August this year relating to the Adani Carmichael project. We should be very clear about what the Federal Court did in that matter, because it is the genesis of this bill. Unusually, we have the assistance of a public statement of the court, released on 19 August, explaining the court's orders. In that statement the court explains that on 4 August a judge of the court set aside the decision of the Minister for the Environment to approve, under the EPBC Act, the Adani Carmichael project. Crucially, though, the court said:

The orders were not made after a hearing. There was no judgment. There were no findings. The orders were made by consent, that is, with the agreement of the parties to the litigation.

Lawyers for the minister had written a letter to the court admitting that he had made an error in his approval decision. In making his decision the EPBC Act obliged him to consider advice about threatened species which a project might affect, but he had not done so in this instance. The minister, through his lawyers, conceded that this error invalidated the decision and asked the court to set it aside. As I said, it is unusual for the court to make a public statement about matters before it. Very diplomatically, the court said it did so in order to correct media reports about the Adani case. What happened, in fact, was that government had an almighty public tantrum. The orders of the Federal Court came about not because of any underhanded action by environmental activists—they were necessary, as the government itself admitted to the court—but because of an error the minister had made.

This is an opportunistic government, however. It is a government which is desperate for a fight. It is desperate to distract from the paucity of its own agenda. Instead of simply remaking the decision—and this time considering all of the information which the act requires—the government lashed out at the decision and at the environmental group which had brought the application to the court. It engaged in the most hyperbolic kind of rhetoric—which I will come to shortly. Instead of reflecting on its own ineptitude—the true cause of the adverse ruling by the court—it announced that it would change the law. This really is quite an extraordinary way to legislate—though it is one we are fast becoming used to under this government.

I am reminded of the crusade against the Racial Discrimination Act led by the Prime Minister and his Attorney-General in response to just one judgement by a single judge of the Federal Court concerning a single conservative opinion columnist. Because of that one judgement—a judgement which the columnist in question did not seek to appeal in even the Full Court of the Federal Court, let alone the High Court—the government decided to repeal a provision which had served the community well for over two decades. This time they did not even have a judgement. As the court explained, there was no trial, no hearing, no findings—just a single set of consent orders setting aside one decision of the minister relating to one mining project. If the government has its way, this is to be the basis for changing the rules about challenging all projects under the EPBC Act, Australia's primary national environmental protection statute.

The current standing provision, section 487, which this act would repeal, has been in place since the act itself was passed by the Howard government. The government has produced no evidence of any abuse of this provision, no evidence of litigation unfairly holding up any development. Since the EPBC Act commenced in July 2000, approximately 5,500 projects have been through the EPBC process. Of these, there have been 33 Federal Court challenges by third parties against only 22 projects—that is right: 22 projects, out of 5½ thousand. This equates to only 0.4 per cent of projects referred under the EPBC Act. Of the 33 actions, four were discontinued or resolved with the consent of the parties and six were legally successful in the sense that the applicant received a judgement or orders in its favour. Only one project was actually stopped. All the others were legally unsuccessful.

The operation of the EPBC Act was last subjected to an independent review in 2009, led by respected former public servant Dr Allan Hawke and a panel of experts. That review considered section 487 and the other extended standing provisions in the act. This was the conclusion of the review led by Dr Hawke: 'These provisions created no difficulties and should be maintained.' The current government is evidently ignoring this finding. They have not conducted any review of their own. They have not produced any real evidence. They have not consulted. They have barely thought about it. This is a government that values ideology over evidence. They are interested in politics not policy. This is no way to legislate in this national parliament. It is no way to govern Australia.

Of course, this government is not one to let the facts get in the way of a good slogan. With no evidence to back them up, they have engaged in some truly extraordinary rhetoric. They have spoken about 'vigilante litigation', a contradiction in terms if ever I saw one. They have slurred farmers and community groups as 'radical activists'. They accuse those who care about this country's environment of engaging in acts of 'sabotage'. And this is not coming from maverick backbenchers. It is not coming from the fringes of the Liberal and Nationals party rooms. This rhetoric is being spouted by cabinet ministers and by the Prime Minister himself. There is one minister in particular who ought to be singled out for this sort of language: the Attorney-General, Senator Brandis. As first law officer, he should be restrained in the way he talks about the courts and about matters before them. He ought never to denigrate the role of the courts in holding the government of the day to the letter of the law, in what must be a new low—

See this speech in context