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

I am pleased to see that the Minister for the Environment and Heritage is present for this part of the debate, but I am not sure that he will listen closely to the contributions. On behalf of the Democrats I must say that I am disappointed with the Environment and Heritage Legislation Amendment Bill (No. 1) 2006 before us. It is widely known—at least, I assume it is widely known—that the Democrats supported the Liberal Party’s Environment Protection and Biodiversity Conservation Act when it was put forward in 1999. We supported it, I might say, only after ensuring that it was very heavily amended, but, in doing so, we were subjected to some extremely strong criticism, including from my friends in the Greens just to my right, from the Labor party and from some environment groups in Australia.

A number of environment groups—the WWF, in particular, the peak environment body in Tasmania and in my state of Queensland, and the Humane Society International—supported our position in passing very heavily amended new and extremely strengthened environment laws into being. Having taken that stance nearly 7½ years ago on the basis of our informed decision that this was a significant strengthening of the environment laws in place at a national level—much stronger than the laws they replaced—it is, I have to say, quite disappointing that there was so little engagement by the government with those who have shown a willingness to work with it. Our record has shown that we are willing to work constructively with the government. As we all know, the government does not need Democrat support to get legislation through the Senate now, but I would have liked to have thought that the government would have seen it as beneficial to have at least involved those environment groups who not only supported the Democrats and the government’s amended legislation at the time but also continued to work with the government and the act.

One of the things I was pleased to see come out of the Senate committee inquiry was that the evidence from those groups who have chosen to work with the act shows that it has been demonstrated that the act is a powerful piece of legislation. The act is capable of providing very significant environmental protection, and the act has operated to provide significant environmental protection. It has not operated anywhere near as frequently as I would have liked, and that has been commented on across the board.

Clearly, I think the evidence that was provided in the very short committee inquiry vindicated the Democrats’ decision to pass the Environment Protection and Biodiversity Conservation Act 1999 as it demonstrated that, where there is political will or where there has been willingness and ability by people at the community level to ensure compliance with the act, it has delivered significant positive results. That is why it is particularly disappointing and particularly noteworthy that, as Senator Siewert pointed out, those groups who supported the adoption of the act and sought to work with it have been so strongly critical. I think it is a missed opportunity for the government and by the department and the minister not to seek to engage with those groups.

If you contrast the processes, you see that the final stages of the passage of the EPBC in 1999 were certainly controversial and, I am quite willing to acknowledge, less than ideal. But the process leading up to that was very extensive. Initial legislation was released. There was a comprehensive Senate committee inquiry straddling the life of two parliaments and then a further significant inquiry into the amended legislation after the 1998 election through to the first part of 1999, so there was literally well over a year’s worth of meaningful and genuine consultation that led to the legislation and the amendments that were derived from that process. Compare that to this time around, where there was no consultation. That is the evidence from environment groups, from people who actually work with the legislation. There was no meaningful consultation. The heritage groups that work with the legislation—again, to some degree, there was controversy—also supported changes relating to the heritage areas of the legislation a few years ago. Those were changes that even the Democrats were not totally happy with, but I will not go into the detail of that particular saga.

I think that background needs to be emphasised, because it is a missed opportunity to engage with groups that have shown their willingness to work constructively and to seek to work cooperatively. Therefore, perhaps it should be no surprise that there are significant concerns about major parts of this legislation. Certainly not every clause in it is bad. There are components of it that do strengthen and improve the law, but significant loopholes are introduced. To me, the most significant one is the removal of the right of merits review, the removal of the opportunity to appeal the minister’s decision on key areas to the Administrative Appeals Tribunal. That is one power that actually predates the EPBC, and that is why it is particularly disappointing that it is being removed.

The bill removes the right to appeal ministerial decisions with regard to threatened species, migratory species, marine species, whales and dolphins, and wildlife trade permits. As I understand it, the right to appeal wildlife trade permits predated the EPBC, going back to the 1980s, so it is a long-entrenched right. It is also a right that the evidence before the committee clearly demonstrated was not being abused or misused. Similarly, the requirement in this legislation to remove the immunity for appellants from potentially being open to putting in place financial commitments before getting injunctions put in place is another right that had not been abused or misused. There is no sign that a legal process had been used in any sort of flippant or non-genuine way, yet this right has been removed.

It was made quite clear to the Senate committee inquiry by the Environmental Defenders Office, by those people who use the legislation—they do not use it maliciously; they use it to ensure that it is enforced—that this will mean that fewer court actions will be undertaken. The example that Senator Siewert gave was one I am very familiar with and very proud of: in my own state of Queensland, local conservationist Dr Carol Booth was able to undertake court action to require compliance with the legislation to protect the monumental slaughter of spectacled flying foxes by a few fruit growers in Far North Queensland. That action may never have been initiated if that initial risk had been there, if that initial financial risk had been put in place.

It is very unfortunate that sufficient resources are not provided to enable adequate enforcement of the act. That is another point that came out very clearly in the committee inquiry. That view was put not just by environmentalists but also by bodies such as the Minerals Council, for example. When you have all of those people across the spectrum saying that more resourcing needs to be put in place to ensure enforcement of the act, then that is a serious problem. It highlights what has been an ongoing concern for the Democrats in supporting legislation, as we did in 1999. Pointing to how strong it is, as I will continue to do, still does not in any way guarantee that you will get ideal outcomes, not least because you can have the best piece of legislation in the world—and the EPBC Act is not the best piece of legislation in the world but it is certainly the strongest national environment law we have ever had by a long way—but, unless there is political will and adequate administrative resourcing to enforce it, then you are not going to get the results on the ground that you should. It should be noted that a lot of the gains that have been made, a lot of the environmental wins that have come through the EPBC, have been as a result of actions by environmental groups working on the ground, particularly by some of the officers of the Environmental Defenders Office.

Again, I point to evidence in my own state of Queensland. The environmental wonders of Queensland are often not given adequate recognition. But, particularly when you get up into the far north of the state, you find the most extraordinary biodiversity—absolutely unique, literally, on a global scale; irreplaceable. Yet that area is under continuing threat from coastal development and other activities. The evidence provided by Ms Kirsty Ruddock, from the Australian Network of Environmental Defenders Offices, was quite clear: the EPBC Act has been of very significant assistance in areas of Far North Queensland. She pointed to the example of the False Cape development, where pursuing the avenues of the EPBC led to an outcome where mariners and boating developments in that area were banned. There have been conditions put on a lot of the mariner developments around the Whitsundays. We have had specific wins with regard to the slaughter of the spectacled flying fox, for example. None of these would have happened without the EPBC Act.

It is worth noting, given the very current and immediate controversy over the Queensland government’s plans to build two megadams in south-east Queensland, particularly the one on the Mary River—the so-called Traverston Dam—that, if the EPBC Act had not been brought into being by the Democrats, there would be no debate; there would be no prospect of federal intervention in that dam. Whether the minister will actually intervene in that issue is something that is still a long way off. Obviously, he has to go through the process with regard to that. But at least there is the opportunity there for the community to make the argument, for the evidence to be put and for some sort of process to be followed that is not just the total sham that applies under Queensland environmental laws.

It cannot be said often enough that, were it not for the fact that the EPBC Act was brought into being by the Democrats, there would be no opportunity to try and ensure that there is protection of the threatened species in the Mary River, to protect against that dam being built. There would not be the opportunity to have the proper assessment of all of the downstream impacts—the impacts on the World Heritage areas, on the Ramsar Wetlands. If the EPBC Act were not there then the debate would not be there. I suppose in one sense Senator Campbell would welcome that because it would mean he would not have that difficult decision to make, but I am sure he will enjoy the intellectual exercise over the coming months. But, if the EPBC Act were not there then, under the previous law, there would be no power for the federal government to act. That in itself is a demonstration of the value of the legislation, because quite clearly there would be no protection provided by the Queensland government.

It has to be repeated that those groups that have used the act, that have been quite prepared to point to its positives, have in some respects actually been more critical than other environment groups. Unfortunately, I think one of the by-products of the ferocity of the disputes over the passage of the EPBC Act back in 1999 was that the vilification of the act led to some groups and some individuals adopting the view or the assumption that the act was as bad as had been pointed out and there was no point in even bothering to use it. That has led to it being underutilised, I think, by people at the community level, which is unfortunate. I am not saying that everybody had to agree with the decision that was made to pass it back in 1999, but the level of animosity that surrounded that I think coloured some people’s views about the merits of the act. But, as I said, the evidence shows that it is a quite meritorious piece of legislation. Indeed, even some of those who did strongly criticise it back at its passage in 1999 now have sought to use it to protect important parts of our natural environment.

The biggest concern that I have is the removal of the appeal right—the merits review under the Administrative Appeals Tribunal. I think that is a very serious reduction in the accountability mechanism of the act. The argument, such as the department has made, that, ‘Well, these are balanced decisions and you’ve got to weigh up a lot of things; therefore, it should be an elected official, a minister, rather than an unelected body like the Administrative Appeals Tribunal,’ is frankly, a very thin one. Indeed, I think it is a very dangerous precedent. All of our courts, whether they are tribunals, magistrates courts or the High Court, are unelected. Frankly, I am one of those who think they should definitely stay that way. To say that a decision made by an elected official is somehow automatically more meritorious than a review by an unelected official is a curious reading of the rule of law in Australia over many years.

The concerns the Democrats expressed about the strict liability provisions in the act are ones that I also want to repeat. I have spoken about these already in this chamber, in speaking to the Scrutiny of Bills Committee reports that have come down, so I will not go into them in detail again now. I followed personally the steps through when some of the seizure powers, search powers and strip-search powers were first put into the Migration Act, and they were opposed by the Democrats at that time—partly because we believed they were not meritorious in their own right but also because of the precedent that they set. This is a perfect example of why it is dangerous to let those precedents be set. It was agreed to by the Senate, without the support of the Democrats, that these powers should be adopted for migration detainees in certain circumstances. Once they were adopted we then saw, in the middle of last year, moves by the government to also adopt them in the Fisheries Management Act for fisheries detainees. The reason was used that we need to have powers parallel with the Migration Act powers. Now we are seeing a further step where, under our environment laws, we are being told that we have to have consistency with the Fisheries Management Act and the Migration Act. We have this curious new term called ‘environmental detainees’. I appreciate that we need enforcement out in the marine environment against people who are damaging the ecosystems, but I do not think these sorts of powers are appropriate in any of those circumstances. I can certainly say that the Democrats will be consistent in saying that they should not be applying in these circumstances. Indeed, the minister’s reply to the Scrutiny of Bills Committee said that he did not envisage them being used very frequently, if at all. If that is the case then let us not put them in there. I think that is a much safer move.

The other point I wanted to emphasise is in regard to the absence of the greenhouse trigger. I was very disappointed to hear Minister Campbell yesterday rule out categorically the greenhouse trigger and say it would be a bad thing. That goes completely against his predecessor, Senator Hill, who in 1999-2000 put a lot of effort into exploring the possibility of putting a greenhouse trigger into the EPBC Act. Indeed, it is not inaccurate to say that there was a clear commitment from the minister at the time that he would work towards putting that greenhouse trigger into the act. It is extraordinary that the Democrats provided an opportunity as long ago as 1999 to ensure that our environment laws enabled assessment of the climate change impacts of development. Seven years later we still have not seen it, and now we have had it categorically rejected. Even Senator Hill seven years ago said that introducing a greenhouse trigger would provide another measure for addressing our international responsibilities in relation to climate change. What has changed? The only thing that has changed is that we know the problem is even worse now than it was then.

I just do not understand why there is this intransigence. I think it really is a backward step and I ask the minister to reconsider his attitude in response to that. A greenhouse trigger would not stop developments happening automatically; all it would mean is that the impacts would be properly assessed so that we know what it is we are doing in regard to climate change. Surely, that is something we should be doing. I will be talking about other matters when we get to the committee stage of the debate. There will be a number of amendments circulated.