George Brandis (Queensland, Liberal Party) Share this | Hansard source

On Sunday, 7 December 2003, Mr Mark Latham was sitting at home in Sydney. Mr Latham had five days earlier been elected to the leadership of the Australian Labor Party. He wrote a long, reflective essay to himself about the challenges he faced as the leader of the Australian Labor Party and how he was going to get it into shape to face a federal election in the ensuing year. He wrote down a list—you can read it on page 254 of his published diaries—of the challenges facing the Australian Labor Party that he had to address. One thing he put on his list was this: ‘We have got to get some decent senators.’ Addressing the trade unions, he says:

... if they want people like me to take unionism seriously, they need to give us better Senators and stop sending their rejects to Canberra.

After that lamentable, embarrassing, ignorant pair of performances by Senator Carr and Senator O’Brien, I cannot help feeling a bit of retrospective sympathy for Mr Mark Latham. What these two gentlemen have demonstrated—and it must be remembered that these two would be ministers in a federal Labor government were the Australian people so injudicious as to elect one—is a lamentable ignorance of elementary legal principles. Neither of them are lawyers. I see my friend Senator Kirk over there, who is a very good lawyer—and, therefore, about to be booted out of the caucus by the Labor Party. She would not need to have this explained to her, but they do, so let us take it simply.

First of all, much is made by Senator Carr and Senator O’Brien of the terms of a consent order in the Federal Court last Friday. It is a consent order which resolved by agreement litigation between Bald Hills Wind Farm Pty Ltd and the Commonwealth. Much is made of the use in the consent order of the language ‘that the matter be remitted to the respondent for reconsideration according to law.’ Senator Carr and Senator O’Brien seem to be unaware of the fact that that is a totally formulaic expression. In any consent order that disposes of litigation on an agreed basis, those words will appear in a case of this kind. It is utterly formulaic and has absolutely nothing to do with the determination on the merits. There was no determination on the merits in the consent order last Friday, contrary to what Senator Carr and Senator O’Brien would have you believe. Perhaps they themselves misunderstand.

This is a very simple case. What has occurred is that a party seeking to develop a wind farm in a particular locality in South Gippsland has made an application and the minister was given certain advice by his department that the application be approved subject to some conditions. The minister chose not to adopt that advice at the time but rather to commission a further survey. I think we have got a glimpse into what a future Labor government would be like with Senator Carr and Senator O’Brien as ministers in it. Not only would no departmental advice ever be called into question, but these ministers—were they ever to become ministers—would think there was something wrong or insidious or corrupt about a minister failing to rubber-stamp departmental advice. So I think we have got a glimpse of what sort of quality of ministers they would be. Nevertheless Senator Ian Campbell, like a good minister should, applied an independent mind to the department’s recommendation. He commissioned a further study by a reputable scientific expert, Biosis.

The particular issue with which Senator Campbell was concerned was not the effect on a given species just of this wind farm but of the cumulative effect on a range of species of the development of a number of wind farms across the coast of southern Gippsland. That is why he commissioned a report, being a minister who was on top of his department, not merely an automaton always following the department’s advice. He commissioned a study into something he was not satisfied the department had sufficiently turned its mind to—that is, the cumulative effect of all of these wind farms on migratory bird species. The report by Biosis came back to the minister. Let me read again, although Senator Campbell has read it once, the relevant conclusion:

Given that the Orange-bellied Parrot is predicted to have an extremely high probability of extinction in its current situation, almost any negative impact on the species could be sufficient to tip the balance against its continued existence. In this context it may be argued that any avoidable deleterious effect—even the very minor predicted impacts of turbine collisions—should be prevented.

In the study that Biosis did, they predicted the death of perhaps one orange-bellied parrot per year by impact with the turbines. That might not sound very many until you realise that this species, which is on the endangered species list, is so scarce and so rare that there are only 50 breeding pairs left in the world.

I am sure that if we changed the species and were talking about somewhat more famous animals, like the great white pandas or the white tigers, and we were told that there were only 50 breeding pairs left in the world and somebody asked the question, ‘Is it an unacceptable level of risk to kill one of the remaining 50 breeding pairs a year?’ most people with an ounce of environmental sensitivity would say: ‘Of course we can’t have that. According to the best scientific modelling and projections, that’s one per cent of all that are left in the world being eliminated every year.’ But because it is the humble orange-bellied parrot and because it lends itself to the asinine parody in which Senator O’Brien sought to engage—this Pythonesque burlesque that he tried and could not even accomplish on a sleepy afternoon in the Australian Senate—it is not treated with respect.

This is a serious environmental issue. There are 50 breeding pairs of this species left in the world. The scientific report says that the chances are you will kill one a year. That is our best estimate. So what does the minister do? He does what he is required to do under section 133 of the Environment Protection and Biodiversity Conservation Act. The act provides certain specific tests that have to be applied to endangered species in considering applications to approve anything that might impinge upon them. In particular, section 18(3) of the act provides that in relation to endangered species:

A person must not take an action that:

(a) has or will have a significant impact on a listed threatened species included in the endangered category; or

(b) is likely to have a significant impact on a listed threatened species included in the endangered category.

I do not think that you would need to be very intelligent to work out that, if you only have 50 breeding pairs of a particular species left in the world and you have a scientific report that tells you that a particular proposal is likely to kill one a year, that is likely to have a significant impact on that endangered species.

Senator Campbell, on the basis of the best science available to him, refused the proposal under section 133(7) of the Environment Protection and Biodiversity Conservation Act, and in doing so adhered to the statutory obligation provided for by section 136(2), which says:

In considering those matters, the Minister must take into account:

                 …         …         …

(e) any other information the Minister has on the relevant impacts of the action.

That includes the Biosis report. The minister did the right thing. Senator Campbell, I hope you are not paying this barrister that you have briefed in the Federal Court proceedings too much, because it is not going to be a very hard case for him to win, to show that you applied the statutory criteria accurately and in accordance with the science.

To top it all off, what we know now that we did not know before, and what Senator Campbell did not know at the time he made this decision on 5 April this year, is that the Victorian government, which had supplied documentation to Senator Campbell on this very topic, had concealed from him one highly relevant fact: a report by its own Department of Sustainability and Environment that reached the same conclusion. (Time expired)