Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Housing and Urban Development) Share this | Hansard source

Thank you. The opposition is very concerned about this bill, and the second reading amendment highlights the fact that this bill is being rushed through the parliament without proper consideration or consultation. This 409-page bill was introduced to the House of Representatives on a Thursday. It was debated the following Wednesday. It was done without a Bills Digest and before submissions had even been received by the Senate inquiry. The government sought to establish the inquiry to give legitimacy to its undue haste and to try to cover the fact that it has moved a piece of legislation which fundamentally weakens ministerial accountability and opportunities for public consultation. This is in the context of a government which has failed to halt the decline in Australia’s natural environment and the undermining of our best agricultural land.

This bill contains no measures to cut Australia’s spiralling greenhouse pollution or to protect Australia from dangerous climate change—in fact, in this 409-page bill, the term ‘climate change’ does not appear. This bill seeks to legitimise the manner in which Mr Howard and this government have politicised environment and heritage protection. I am not saying that there aren’t some positive features within this legislation, but the overriding effect of it is negative. That is why the opposition has called upon the Howard government to ensure that climate change is properly factored into environmental decision making under the Environmental Protection and Biodiversity Conservation Act 1999. That is why we were seeking to establish a climate change trigger in the act to ensure that large-scale greenhouse polluting projects are assessed properly and thoroughly by the Commonwealth government. That is why we are saying there needs to be adequate time for public consultation and debate on legislation as controversial as this bill is.

However, we will be opposing the bill because it is fundamentally bad legislation. This legislation is deeply regressive. It is surrendering many of Australia’s achievements in environmental and heritage management which have been hard won over the last 35 years. It marks a deliberate watering down of environmental and heritage management in Australia. If passed, this bill will weaken the levels of protection for Australia’s biodiversity and heritage.

This bill represents a further lost opportunity to address the challenges of climate change. This should have been done by recognising that climate change is a matter of national environmental significance—it is, frankly, a matter of international environmental significance—but the government has turned its back on the opportunity to do that in this legislation. You would have thought that such a logical step would have been included in this legislation. There should have been attention to detail on climate change and there is not even an oblique reference in the legislation that is before us. It seems our unique flora and fauna are not worth protecting from the ravages of this government and the ravages of climate change.

This is fundamentally sloppy legislation. We will oppose this legislation because it has been presented to this parliament without proper discussion within the community. Its fundamental principles have undermined the proper decision-making processes and in effect corrupted the legislative process. We will be ensuring that this highly controversial legislation is debated in the public at large. I think it is quite clear, given the numbers that have been expressed in this chamber, that it is more than likely that this legislation will be passed, despite the fact that it dramatically downgrades the levels of environmental and heritage protection in this country.

You would have thought that Australia’s deserved reputation, developed throughout the 1970s and 1980s as a pacesetter in terms of environmental protection, would have warranted proper protection in this legislation. But the government has essentially turned its back on those matters. The truth of the matter is this government is deeply regressive and deeply reactionary. This Prime Minister has sought to revisit the debates of the 1970s and he wishes to re-engage in debates, which were lost in the 1970s, through legislation of this type. He seeks to re-establish the sorts of views left behind in the 1970s. With a minister such as Senator Ian Campbell, this is a government which is fundamentally floundering when it comes to the question of environment. This bill will seek to legitimise the sort of slapdash, shoddy, contemptuous attitude that this minister has displayed with his William the Conqueror’s approach to the parrot, for instance—the one-in-a-thousand-year parrot scandal that we have seen. He has sought to apply the principles of political science, not natural science, when it comes to the issue of environmental protection.

We have got a perfunctory examination of fundamental questions which are matters of deep concern in this community. This legislation seeks to legitimise the downgrading of those concerns. In the process it has denigrated the public attitudes which seek to emphasise the importance of these matters. In so doing it has also denigrated members of this parliament who, equally, are very concerned about protecting Australia’s environment and our international reputation as a community that understands the importance of these issues.

It is not just the opposition that has shared this concern; it has been of course members of the government’s own backbench. Senator Ray, in referring to the government’s response to the Alert Digest, No. 11 of 2006, made the following point about the 12 pages of detailed critique of this legislation, which had been unanimously carried by the Scrutiny of Bills Committee. He said today that those 12 pages of report raised issues which were of such importance that they were to ‘prompt government and opposition senators to join me in expressing concern at the apparent lack of rigour in the drafting of this bill and particularly of the drafting of the explanatory memorandum which accompanies it’.

The government has sought to bring forward answers to those criticisms. Senator Ray has pointed out that, for the most part, the committee—not just opposition senators—drew a number of these concerns to the attention of the Senate. He said that they ‘maintain their view that the government has failed to address those fundamental concerns’. When it goes to fundamental issues of civil liberties, one would have expected that in this day and age legislation of this type would have acknowledged those and would not have transgressed upon them.

Senator Johnston put it very clearly when he spoke of the explanatory memorandum in the following terms:

This explanatory memorandum is probably one of the most appalling I have ever seen in the short time I have been in the Senate. It discloses no motivation, no reasoning and no justification for some of the most draconian powers that this parliament can conceivably and possibly enact ... This legislation should go back to the drawing board.

You would have to agree with Senator Johnston, and I think reasonable people will take that view. I am not certain, however, that the government is made up of reasonable people, so it just may well be that the government has taken a position to pass this legislation. On this occasion, however, I must reiterate and agree with Senator Johnston. It is not often that I do, but I think on this particular matter he has hit the nail right on the head. The committee continues to maintain that there is a failure to find persuasive reasons to support the government’s explanations for its fundamental failure in regard to these matters.

They have the ludicrous notion that there should be a distinction between frisk searches and ordinary searches when it comes to the penalties and actions of officers and that that should be legitimised under this legislation. As Senator Ray pointed out to us a short while ago, the committee was concerned to note that certain provisions in the bill make no distinction between frisk searches and ordinary searches, but that it would be unnecessary in normal circumstances for such a distinction to be made because they would not appear in legislation of this type. The committee remains unpersuaded by the clever and smartypants attitude that the government has sought to adopt when it comes to finding ways of getting out of these very serious concerns that go to the issues of fundamental civil rights in this country.

Frankly, you have to ask yourself what type of legislation should allow for the insertion of a power to strip search. There are circumstances, I acknowledge, where such a power is warranted—as the committee has pointed out, in the existing Migration Act. But it has only ever been used once since January 2003, which is hardly a compelling case to legitimise it or demand that it continue under this legislation.

It surely fails to demonstrate the need for the introduction of such extraordinary powers, such exceptional powers, in environmental legislation of this type. I would have thought that the normal provisions where such extensive powers occur in parliaments across Australia would apply in this case. The normal provisions are that it is the responsibility of those parliaments, where they allow the police to exercise such powers, to ensure that they are monitored by appropriate parliamentary committees and that there is the clearest and the strongest accountability reporting mechanisms. All of those things are of course lacking from this legislation. It is bad legislation. There are so many problems, so many flaws, so many imprecise assumptions and so many unsupported leaps of faith.

There is the capacity under this bill for the minister to have greatly increased discretionary powers when it comes to the determination of environmental protections. Concerns have been expressed by previous supporters of the government’s policy, such as the World Wildlife Fund. They have pointed out just how fatally flawed these amendments are. They argue that the proposed transfer of vastly expanded discretionary powers to the minister and the deliberate reduction in ministerial accountability are undemocratic.

We see that as well with regard to heritage protection. Organisations are deeply shocked by the implications of these measures. These include the National Trust, as I have indicated before—hardly a revolutionary organisation, the National Trust—and ICOMOS, which is hardly a militant organisation. They have indicated that they now repudiate—and, I get the sense, deeply regret—their earlier support for the government’s heritage policy, because under this legislation a minister can determine what can be considered for environmental protection or heritage listing without anyone else being able to make appropriate legal appeals, even in a case where the minister has got the law wrong.

We have a situation where the value and influence of independent, arms-length advice and scientific evaluation is being lost. As ICOMOS argued in their submission to the committee inquiry:

The Minister has the power to add to or remove any place from the Priority Assessment List … having ‘regard to any matters the Minister considers appropriate’ …

like whether or not the seat that a particular site appears in will be on the Liberal Party marginal seat list. That may be the science here: what is the swing required for the seat to change hands? That is the sort of assessment, under this arrangement, that the minister can make—again, ‘any matters the minister considers appropriate’. ICOMOS indicated:

… the listing should be based solely on the assessment of the National Heritage values of a place.

But it is quite apparent from the way this government acts that these are now essentially politically based decisions.

The nomination of threatened species or heritage sites for listing, one of the most important aspects of environment and heritage legislation dating back to the 1970s, has been based on an objective assessment process, a scientific process—evidence based policy. They are the types of actions one expects from the Australian Public Service, the sorts of actions that have given us an international reputation as a country that produces some of the best public servants in the world. But under these provisions their actions will be subverted as a result of the government now having the capacity to undermine evidence based decisions and make decisions not on the basis of scientific assessment but on the basis of the political priorities of the minister of the day.

In this legislation there are no guarantees of the integrity of the decision-making process when it comes to environmental and heritage management and protection. In the place of objective assessment or scientific analysis, we will now have a situation where the current minister—as we have seen in the case of the orange-bellied parrot—can sweep aside any decision if it is politically advantageous to the Liberal Party to do so. Instead of a system of nominations based on objective principles, this legislation invents a new, cute little system of annual nominations for approved annual ‘themes’ under which the minister can determine what can and cannot be assessed for protection or listing. As the Australian Conservation Foundation indicated in their submission to the committee inquiry:

Themes may be administratively convenient or politically attractive, but alas species do not become threatened thematically.

So this legislation reduces accountability and transparency in two primary ways. Firstly, it restricts the ability of individuals or community organisations to seek reviews of ministerial decisions. As the Law Council—again, hardly a radical organisation—has pointed out, this is high-handed action, and they argued that ministerial discretion should be subject to at least review by the Administrative Appeals Tribunal. Secondly, the current legislation prevents the High Court from requiring undertakings for damages as a condition for granting interim injunctions.

Public interest actions in defence of environment or heritage sites are now to be abolished. In other words, this legislation will effectively eradicate third-party enforcement because the threat of bankruptcy will ensure that organisations whose legal actions in the past have been instrumental in protecting heritage sites or our biodiversity will no longer be able to do so. The minister can ride roughshod over professional advice, he can ignore scientific or heritage assessment and he can use whatever spurious reasons come to hand without being answerable to anyone. Frankly, on that basis, this legislation should be rejected.

As I said, in the case of the orange-bellied parrot debacle, we have already seen what this government is capable of and it is quite apparent that this is a government that is really not interested in the protection of the environment. (Time expired)