Rachel Siewert (WA, Australian Greens) Share this | Hansard source

I have made a number of ‘outraged response’ speeches in this place this week and it is extremely difficult not to do the same on this occasion. The Environment and Heritage Legislation Amendment Bill (No. 1) 2006 is the most astounding piece of legislation that I have seen in a long time. The Greens will be opposing this legislation. It brings in extensive changes to an act that is already not adequate to protect our environment and which should be strengthened. I will attempt to address these extensive changes now, but I am aware that my colleagues will pick up other areas and cover those in more detail.

This is one of the most important pieces of legislation that we have seen in this place in recent times. It spells out with great clarity exactly how the government intends to treat the Australian environment in years to come. The Greens did not support the original form of the Environment Protection and Biodiversity Conversation Act when it was passed in 1999. It was extremely controversial legislation, and extremely controversial within the environment movement. I should know because I was there being involved in the debate. But it is significant to note that even those environment groups that supported the legislation in 1999 unanimously reject these amendments. The Greens indicated that outsourcing Commonwealth environmental responsibilities would undermine environmental protection. We predicted that hiding behind instruments such as the regional forest agreements would fatally compromise the values that this act was meant to protect. We strongly believed in 1999 that climate change was a matter of national environmental significance. Seven years later, the government has compounded its failure in 1999 to produce the kinds of measures required and to take climate change into account. It has not learnt. Seven years of water scarcity, climate change, land clearing and biodiversity loss later, we are confronted with 400 pages of amendments that cripple a body of law that was weak to begin with.

The bill appeared from nowhere. There was no exposure draft, there was no discussion paper and there was no consultation with the community or with the environment and heritage groups and other organisations that work most closely with this act. The government is in too much of a hurry to wait and wants to rush this through before they see the outcomes of the Australian National Audit Office review, before they see the review of the triggers and before they see the 2006 State of the environment report—or, more accurately, before the community sees these reports and is further outraged by the degradation to our environment. These reports, I believe, will clearly show that this act has not been functioning adequately.

No government review has been conducted into whether the act is working to protect our environment. The only independent review of the operations of this act was conducted by the Australia Institute in 2005. In its summary, it confirmed the misgivings we expressed at the outset:

After almost six years, it has become patently clear that the Environmental Assessment and Approval (EM) process has not lived up to the sometimes grand expectations held for it. Most importantly, the EM regime has failed to prevent the continuing degradation of Australia’s natural and cultural heritage ... it is hard to avoid the conclusion that the EM regime has wasted an enormous amount of public and private resources, without realising any significant environmental outcomes.

Our only real point of agreement with the government is that we agree that this act is in urgent need of amendment. The Senate Standing Committee on Environment, Communications, Information Technology and the Arts, which looked at this legislation and of which I was part, was given, as everybody knows, unrealistic deadlines within which to analyse and report on this bill. It was given completely inadequate time in which to conduct hearings. Interest groups were given 10 days to analyse 400 pages of amendments and prepare responses. It is quite obvious that the government is not interested in listening to the feedback and having any genuine consultation with the community and holds the environment and heritage sector in contempt.

There must be some important reasons why the government is in such a rush to bypass all the normal processes and inputs which you would normally expect if it were genuinely wishing to improve this legislation. We know what the rush is about, and it is spelled out in the explanatory memorandum. This bill:

• Reduces processing time and costs for development interests …

The government has introduced this bill not to protect the environment but to further relax such protections that do exist. The Minister for the Environment and Heritage is becoming a junior minister for development.

Every five years, the minister for the environment is meant to prepare a section 28 report on whether additional matters of national environmental significance should be considered under this act. There is no sign of this report. According to this bill, there are also no new matters of national environmental significance that we need to be concerned with. I find it completely breathtaking that at the end of 2006 this government still does not consider that climate change is a matter of national environmental significance. The premier piece of environmental legislation in Australia is silent on the most important and significant environmental issue of our age. My colleague Senator Milne will introduce a climate change trigger to this bill, and the government will most likely not support it. We will also be introducing triggers for unsustainable water use, large-scale land clearing and large dams.

For more than a decade, the government has shown enormous reluctance to properly engage with the debates on climate change, biodiversity loss, water and land-clearing issues. These are real crises which are crippling agriculture and are now bearing down on our coast areas, our rivers, our wetlands, our cities and our species. We have in front of us the first opportunity to set down a national response to these issues in legislation. Instead, we are presented with a 400-page piece of legislation which amounts to a get out of jail free card for big business and their strongest advocates, the federal government.

In addition to avoiding the central environmental threats faced by this country, in essence this bill does four things. First, it avoids Commonwealth responsibility. It divests responsibility for national environmental issues away from the Commonwealth, fundamentally undermining the objectives of the act. Four assessment bilaterals have already been signed allowing the states to do the Commonwealth’s job in assessing development proposals. The whole point of this legislation should have been to introduce consistent Commonwealth regulation of issues of national environmental significance. Instead, responsibility is being hived off to states and corporations for them to regulate themselves. Just as troubling is the notion of approvals bilaterals. We have just learnt that one is apparently under negotiation with the government of Western Australia over the Burrup Peninsula. This is presumably to let the federal minister for heritage off the hook in terms of having to make a decision on development over the Burrup. If ever there was an example of a state government failing in its environment and heritage obligations, this is it. But the Commonwealth is currently negotiating away its responsibilities and this bill will further entrench this trend.

The trend extends to the system of exemptions that makes it impossible to apply a nationally consistent framework to protect threatened areas. Proponents will be able to hide behind bioregional plans, strategic assessments and conservation agreements, in addition to regional forest agreements, and avoid community scrutiny of their activities. A proponent with a large and controversial development will be able to lobby for a particular area to be covered under a strategic assessment or bioregional plan. Once that administrative arrangement is in place, projects said to be consistent with the overall plan can be built with minimal government or public oversight. This is a loophole big enough to drive a nuclear waste dump or uranium mine through. This has, of course, increased the willingness of the government to override the act altogether when it is convenient. The Commonwealth’s radioactive waste dump proposal in the Northern Territory is the most infamous example of this. There seems to be little point to having national environmental laws if the government’s most controversial projects are going to be exempt from them.

The second issue is the reduction of democratic participation. This bill reduces opportunities for democratic participation and review. Major barriers in the way of public participation have been put in the bill and it has also taken away the capacity of the public to appeal decisions. Since the act came into force, 11 third-party enforcement actions have been brought to the courts. Perhaps the most famous is the so-called flying fox case of Booth v Bosworth in 2000. Carol Booth brought a successful injunction against a Queensland lychee farmer whose overhead electrical grid was killing 18,000 speckled flying foxes a year. Under the current act, she was protected from having to give an undertaking as to damages. In the words of the original report of the Senate Standing Committee on Environment, Communications, Information Technology and the Arts on this bill:

The committee considers that requiring undertakings as to damages would be an unnecessary hurdle to persons or organisations seeking to enforce provisions of the bill in the public interest.

That protection is being repealed. From now on, in the event that the government is failing to enforce the act and a citizen or group decides to take action, they will be asked to post a bond and be exposed to the costs in the event that they lose the case. So there will be no more flying fox cases, no more protection and no longer an ability for the public to protect our species where the government is unwilling to do so, as it was in that case.

The government will spend $13.8 million in 2006-07 on assessing and monitoring activities that could impact matters of national environmental significance. By comparison, it will spend $170 million on subsidising the consumption of draught beer. We spend $63 million per year on enforcing national competition laws but less than a quarter of this amount on enforcing national environment laws. As a further slap in the face, Minister Ian Campbell announced a $60 million gift to Chevron Texaco to subsidise their activities on Barrow Island. That represents 30 hours worth of Chevron’s profits in 2005. The government clearly intends to continue starving the Department of Environment and Heritage of resources. A further $1.6 million is being stripped for the 2007-08 budget. You would think the government would want to reduce barriers to citizen and non-government enforcement actions given its lack of funding to enforce its own laws; instead, the opposite is happening. The Minister for the Environment and Heritage is also removing the right of appeal of ministerial decisions by the Administrative Appeals Tribunal. This has implications across the board, including for trading in live animals such as the CITES listed species. This is one further avenue of democratic review sealed off by this government. What possible rationale can there be for these actions except to avoid the scrutiny of the public?

The third issue is threatened species and places. The already flawed system for listing and protection of threatened species, ecological communities and heritage assets is being further downgraded. The minister has turned the listing process for threatened species and ecological communities into a theme park. I remind the minister that species are not threatened according to themes. They are threatened right across the country and in our oceans by well-understood processes that range from land clearing, through to overfishing and climate change. The minister has shown no hesitation in using the current system for political ends, as the orange-bellied parrot fiasco illustrates. We now run the risk of this same minister deciding the threatened species flavour of the month on a political whim, sidelining good science and conservation interests that are such an essential part of our system if it is to work properly. Currently, the minister can indefinitely postpone the consideration of politically sensitive listing proposals by tying them up in bureaucratic processes. That is the reason why, despite overwhelming scientific evidence, commercial fish species that are reaching the threshold of extinction have not been put on the threatened species list. That is why only one is listed for protection—and that one, only just.

However, since he is probably getting bored with tying everybody up in bureaucratic processes, the minister with this legislation is now given the right to arbitrarily remove a nominated species or ecological community from the consideration of the Threatened Species Scientific Committee. That is so much easier than making the hard decision about whether to offer a species the protection it deserves under the law or to tie it up in the bureaucratic process. I will never again underestimate the capacity of the government to make a bad situation worse, as is going to happen with our threatened species process.

The notion of critical habitat has received only scant treatment in the bill. Habitat destruction is the key factor in the fight for survival for many species, but the government has failed to address this issue with robust protections for critical habitat. There is a backlog of 500 threatened ecological communities currently nominated under this act. They are now at risk of being wiped from the lists during this transition process. What a wonderful way to clear a backlog—you just legislate it out of existence! No doubt we will hear that the states will be taking up the slack and adding these nominations to their lists. I tried to find a place in the bill that makes sure that this will occur but it is not there.

There is also no longer the requirement to develop recovery plans once a threatened species or threatened community is listed. Over the life of this act, recovery plans have been watered down to the point where they are of marginal use. Instead of legislating some teeth into them, they have been made entirely optional. Most troubling is that, if a species has been refused protection in a previous assessment, the minister will shortly be able to refuse to look at it again even if its conservation status has worsened. These amendments are a one-way ride to extinction for many species. Quite frankly, they could not have come at a worse time for Australia’s unique and fragile environment.

Lastly, I am dismayed by the vesting of inordinate discretionary powers in the hands of the minister. He has effectively sidelined the expert bodies set up to advise him under the act. It is part of the pattern of centralisation of power and unaccountability that has so strongly characterised this term of the Howard government. Under the act, this minister has the Threatened Species Scientific Committee and the Australian Heritage Council—both highly regarded bodies which are eminently qualified to provide advice on ecological listings and heritage nominations—but he sidelines these expert bodies. The scientific committee has been muzzled and left on the sidelines. It can provide all the input it likes, but the minister has the power to dismiss it arbitrarily. The actual conservation status of a species is no longer listed as a relevant criterion for placing it on a priority action list. The scientific committee is also to be prevented from disclosing any information used to make its assessments, which appears to be an attempt to frustrate freedom of information applications.

The Australian Heritage Council has not done much better out of this bill. I am sure the minister had the contentious case of the Burrup Peninsula uppermost in mind when he oversaw the drafting of these provisions. The Heritage Council will be dragged into the minister’s arbitrary theme park approach. Any place the minister considers is too hot to handle can be deleted from the list by the minister or deferred indefinitely. Currently the minister has 60 working days to decide the fate of a nominated place such as the Burrup. With the clock running down, the minister has introduced amendments which allow him to delay a decision on such a place forever.

I can only stress that this government, and this environment minister in particular, will be harshly judged by the community for the measures introduced in this bill. An act which was functioning poorly will shortly be completely gutted. The Australian community has moved on and is demanding leadership and robust environmental protection in the face of habitat loss, water stress and climate change. The minister and the government are oblivious to these demands and are dancing to a short-term development tune that only they can hear.

The Greens will be opposing this bill. We oppose the amendments in this bill. The government has wasted the opportunity to strengthen environmental protection in this country that is so urgently needed. The Greens will be moving amendments that will significantly strengthen this act and provide a trigger for climate change, a trigger to deal with our water crisis and a trigger to deal with land clearing, which is still the dominant reason for species loss in this country. Unfortunately, Australia has an unenviable record. It has the highest loss of the mammalian species in the world, and it has biodiversity hot spots in a number of places. The south-west of Western Australia, my home state, is one of the most highly diverse areas in the world. Unfortunately, our biodiversity is going backwards fast due to the impacts of salinity, the impacts of climate change, the impacts of habitat loss and the impacts of land clearing. Unless this government acts to strengthen our environmental protection act, our species in Australia have a very, very sorry outlook.

This government has abused the environmental protection act. It has not used the strength in the act, weak as it may be. It has failed to use it adequately. It has not put in the required resources, and now it wants to completely gut it and take out the community’s capacity for participation, adequate scrutiny and the ability to carry out its job. It has not been doing its job; now it is taking away the community’s capacity to do its job for it. These changes are not supported by the Greens and should be rejected by the Senate.