Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

I want to speak to a few of the issues that are perhaps being lost in the flames being thrown backwards and forwards in this debate. We have before us a censure motion against the Minister for the Environment and Heritage with regard to a decision he made about a wind farm in Victoria. I have of course been quite critical of Minister Ian Campbell a number of times publicly, as he and anyone else who bothered to listen would know. I think he has acted in various ways across his portfolio somewhat erratically, inconsistently and in a contradictory fashion. But that in itself is not grounds for censure.

There are a few mixed messages here that I want to take the opportunity to correct, particularly with regard to the nature of the EPBC Act. That act was actually opposed by the Labor Party and the Greens, and indeed we heard Senator Milne saying that the Greens’ view is that the EPBC Act should be repealed. Of course, the Greens opposed it in the first place. The simple fact is that if they had been successful in that position—and the Democrats had followed their line and not supported the heavily amended EPBC Act—then we would not be having this debate, because the federal minister would not have the power to do anything with regard to endangered species. So I think it is completely the wrong tack to attack the EPBC Act. Nobody, least of all the Democrats, has ever suggested it is perfect, but it certainly provides a mechanism for review of projects and proposals to see whether or not they impact on key national matters of environmental significance, including endangered species.

Another key part of that act, which did not exist previously, is the scope for third party rights, for other people to have standing. Again, we would not be having this debate if it were not for the strengthened federal environment laws, because it would not have been possible to take court action against the minister’s original decision. Court action is not ideal—it is very expensive—but the fact that people have the right to challenge a decision by the minister in this area is very important and it is a key protection that the Democrats put in.

Using this example to attack the EPBC Act is, frankly, misguided—unless it is just a deliberate attempt to run a political agenda. But it is a bit strange that we have the Greens saying the EPBC Act should be repealed. According to what Senator Milne said yesterday, it always depends entirely on the whim of the minister whether he is going to apply the act appropriately or otherwise. Well, this case proves that that is wrong, because there was the opportunity for court action to be taken to generate a situation where the minister agreed to review his decision, and his decision was set aside by mutual agreement through the court. It is particularly strange because, at this very moment, as Senator Milne herself knows and indeed alluded to, her Tasmanian colleague Senator Bob Brown is running an extremely comprehensive court case in Tasmania using the EPBC Act to try and protect some endangered species. It baffles me how this act can be completely hopeless, terrible, useless, appalling and should be repealed, and yet it is being used to attempt to protect endangered species.

I support Senator Brown’s court action, as does the Wilderness Society. They are on the record as saying that it is an important test case, that if it succeeds it will have very positive effects for the future of biodiversity and native forests throughout Australia. I do not know if it will succeed. It is attacking a particular component of the act. All I will say is that it is certainly not a sure thing but I hope it does succeed. If it does then we will have one Green Tasmanian senator using this act to make, according to their own words and those of the Wilderness Society, a major advance in protecting biodiversity and threatened species in forests around Australia, and we will have the other Tasmanian Green saying that the act should be abolished.

I think people need to move forward from their politically driven and politically motivated opposition to the EPBC Act from 1999. I will again use Senator Milne’s own statistics, which came from the Australia Institute report. I know that report, and I know the author quite well and broadly agree with his conclusions. The government has not been using the EPBC Act enough and it has not been using it strongly enough. Nonetheless, there were 1,913 proposals, according to the figures Senator Milne gave, and 462 of them were controlled actions. That is over 450 more actions and proposals than were previously overseen or intervened in by the federal minister. Out of a number of those controlled actions, many were approved, but many of them were approved with extra conditions.

I think Senator Scullion outlined the process of going through this approval mechanism using controlled actions, negotiating and assessing the potential impacts under matters of national environmental significance and how, even if the proposal still goes ahead, that can and has led to very significant pluses in environmental outcomes. Certainly, where conditions have been applied as a result of that process, that has also meant in some cases significant environmental outcomes. So, the very statistics that are being used to say the act is useless actually reinforce the fact that it has had some positive results.

I do not for a minute say that it is perfect, as I said. I certainly think it needs to be used far more often and far more strongly. But the simple fact is that it is an extra mechanism that would not otherwise exist at all and which would allow a lot of these actions at state government level to go ahead and be put through without any decent assessment at all. It is a completely wrongheaded approach and it is not helpful in the context of this debate. Indeed, one could suggest it is somewhat ironic that people are complaining about how the minister does not use his powers to stop inappropriate developments and the one time he does use them he gets hauled over the coals for it.

There is no doubt, in my mind anyway, that there is a lot of politics involved in this—obviously from all sides but particularly in the decision that the minister came to—but the key thing, when you are looking at law, of course, is whether or not under law his actions are able to be justified. If they are not—if he did just pluck it out of the air with no justification, purely for political motivation—then of course there are grounds for a legal challenge, and that is what the proponents of the wind farm did. By agreement, the original decision has been set aside and there will now be further examination of it. All of that has actually shown a situation where the act has worked. I agree that the minister has certainly taken way too long in coming to a decision. That is certainly the case, and that is clearly problematic.

There was advice from the environment department about non-approval potentially having implications for coastal development. I am on record in this place a number of times calling on the minister to use the act more frequently with regard to coastal development. Certainly, in my own state of Queensland, we need better protection, and we need the environment minister intervening more to stop some of the coastal development, because communities and environments are being decimated. There are lots of places up on the Queensland coast—I have spoken about Mission Beach and Airlie Beach and other areas before in this place—where this not just massively impacts on communities but also causes real damage to threatened species and icon species, like the cassowary, and causes fragmentation of habitat. I want the minister to use his powers to stop coastal development more often—obviously, on a scientific basis. I do not want him to do so capriciously, but I think there is clearly a death of a thousand cuts happening with a lot of coastal developments, many of which are being referred as controlled actions under the federal act but which are nonetheless still going ahead. I think the cumulative impacts of all of those do need to be more strongly assessed.

Senator Milne also called on the minister to make the same decision on the spotted handfish with regard to a development in Tasmania. Again, I concur with her on that. The trouble is that she is attacking his decision on the orange-bellied parrot, which makes for a bit of an anomaly. She opposes the EPBC Act and wants to abolish it. If it were not there, if it had not been passed by the Democrats in 1999, there would be no power for the federal minister to do anything about the spotted handfish, whether he wanted to or not. So I do think it is important to clarify some of those inconsistencies. The situation now is that the decision is being reviewed by the minister and will be remade. Obviously, people will be watching that closely. I do not think that anyone could possibly suggest that a decision in this context is not going to be political, because it has political ramifications one way or the other.

People use ‘political’ in this context as a dirty word. That is understandable, but the word ‘politics’ has a lot of different meanings. There is another meaning to it, which is paying attention to community views. As I have also said in this place a number of times, at the moment the Queensland government is planning to build a couple of—and one in particular—extremely destructive dams. The local community is very strongly opposed to this, as am I. It will clearly have heavy environmental impacts as well as social impacts, and it is economically stupid—not that you can appeal about that under the environment law. I think in these circumstances we need to have the safety net of the federal environment act that can ensure a minister moves in.

Of course, the act is not perfect and, of course, we will always be in a situation where the minister has some discretion. But, frankly, the minister has to exercise his discretion according to law. That always leaves a lot of leeway, but it is not a total blank cheque. There is a loophole in the act with which he can just exempt himself from it, as happened with Christmas Island, and that is unsatisfactory. But the minister does not have open slather under the act. He has to make his decisions according to the law, and if somebody believes he does not then, if they have standing, they can challenge them. I suggest that that situation is as it should be.

The attempts to link the minister’s less than perfect actions on this particular issue to the flaws in the EPBC Act are wrong and, frankly, unhelpful. We do need to strengthen that act. We do need to strengthen the actions of the minister under that act. But simply discrediting the act and discrediting the times when the minister does use his powers will not be particularly helpful. I should also emphasise that the statement made that the act has proved to be useless is simply not correct. It may have proved to be useless in terms of what people want to do in Tasmania—I do not know—but it has certainly proven on a couple of occasions to be very powerful in situations in Queensland.

An example is a decision made by the former environment minister in regard to another dam, the Nathan Dam, in which, because of the EPBC Act—and it would not have been able to happen otherwise—people were able to take that action to court to challenge it, and the action was successful. Because of that, it was made clear that under law, contrary to what has been said in this debate by some on this side of the chamber, the minister is required to consider the cumulative impacts of any proposal including, of course, the Nathan Dam. That principle was not challenged by the government, not appealed, so it now applies at law with regard to any other proposal, including the new dams that are being planned in Queensland. So the act has demonstrated significant benefit already. That is not to say that the Nathan Dam will not go ahead eventually, but it has certainly been held up for two or three years. It is a dam that both major parties supported. I did not. I hope it does not end up going ahead, but it is one case in which the act has proven to be very useful.

Another case is with regard to spectacled flying foxes in North Queensland, where a court challenge under the act was able to have direct positive consequences for the prevention of the slaughtering of that particular endangered species. More court actions have continued subsequently with regard to that. The third party rights of standing provisions in the federal act were forerunners that were key to ensuring that similar provisions are now in place under Queensland’s Nature Conservation Act, which have now been successfully used once again to try and protect continued threats to the spectacled flying fox by orchardists in that area. I do think those aspects of the debate need to be put in place and put on the record. There have clearly been politics with regard to this decision, and that is perhaps not surprising because we are all politicians. Certainly, it took a lot longer than is desirable.

As to the issue of industry certainty, I am certainly a strong supporter of the wind industry, but I actually do not want industry certainty for coastal developments, for tourism resorts or for canal estates. I want them to know that they might not have success, I want them to think twice and three times before they go ahead with proposals and I want those proposals to be thoroughly examined by the strongest environmental mechanisms. We still need to strengthen this federal law, but it is a lot stronger than what was there before. That is directly a result of the Democrats strongly improving the EPBC Act in 1999 and not caving in to the, frankly, hysterical crusade launched against those who supported the legislation at the time which, judging from some of the comments made in the last day or so, is still continuing today. The minister’s decision, as I said, is one that has aspects that are problematic. Whether or not it undermined the administration of the act and he abused his powers is a rather more open question than what many others in this debate have suggested.

Question put:

That the motion (That the motion (Senator Chris Evans’s) be agreed to.) be agreed to.