Oct 18, 2006

Environment and Heritage Legislation Amendment Bill (No. 1) 2006

Environment and Heritage Legislation Amendment Bill (No. 1) 2006

Second Reading

18 October 2006

Mr ALBANESE (Grayndler) (1.54 p.m.)—I move:

That all words after “That” be omitted with a view to substituting the following words:

“the House declines to give the bill a second reading, and expresses strong concern that:

(1) the bill is being rushed through the Parliament without proper consideration or consultation;

(2) the Howard Government has failed to halt the decline in Australia’s natural environment and best agricultural land;

(3) the bill contains no measures to cut Australia’s spiralling greenhouse pollution or protect Australia from dangerous climate change;

(4) the bill will increase the Howard Government’s politicisation of environment and heritage protection; and

(5) many of the proposed changes in the bill will reduce Ministerial accountability and opportunities for genuine public consultation; and therefore calls on the Howard Government to

(6) ensure climate change is properly factored into environmental decision making under the Environment Protection and Biodiversity Conservation Act 1999 (the Act);

(7) establish a climate change trigger in the Act to ensure large scale greenhouse polluting projects are assessed by the Federal Government”; and

(8) allow greater time for public consultation and debate on the Bill.

This process is an outrage. Last Thursday in this House the Parliamentary Secretary to the Minister for the Environment and Heritage tabled a bill that is 409 pages long. With it he tabled an explanatory memorandum that is over 100 pages long. Now, less than one week later, before submissions have even been received by the committee to look at this legislation, Environment and Heritage Legislation Amendment Bill (No. 1) 2006, we have a debate on it and it will be rammed through the House of Representatives this week.

Ms Macklin—Typical arrogance!

Mr ALBANESE—This is an arrogant, out-of-control government. It does not want accountability for its performance in the area of environment and heritage. The Australian public should always judge the Howard government by what it does, not by what it says. The parliamentary secretary has described climate change as a ‘very serious threat to Australia’, but in 409 pages of amendments—literally thousands of amendments to this act—there is not one single mention of climate change—not one. This bill has been three years in the making and there is not a single mention of the greatest threat facing not just Australia but the globe. There is not one single measure contained in this bill to cut Australia’s soaring greenhouse gas pollution, which, if you exclude the land use changes by the New South Wales and Queensland governments, grew by 25.1 per cent between 1990 and 2004. As I said, judge them by what they do, not what they say.

I would have thought that climate change would be on the government’s radar by now, but it seems that the climate sceptics are still running climate policy for the Howard government. The government has responded to other issues with legislative measures but the absence of any climate change measures in these amendments would suggest that they simply do not see it as a priority. Labor certainly welcomes any attempts to reduce red tape when it comes to legislation where that issue is clearly identified and Labor agrees with one comment by the Parliamentary Secretary when he said in his second reading speech:

‘… the government sees no need for administrative process for process’ sake. ‘

But the parliamentary secretary made an important point when he noted that the 2006 Banks report on regulatory burden did not recommend a single change to the EPBC Act. It is not surprising, however, given that the Prime Minister just two weeks ago said that he did not want to respond to ‘theoretical issues’—

The SPEAKER—Order! It being 2.00 pm, the debate is interrupted in accordance with standing order 97. The debate may be resumed at a later hour this day and the member will have leave to continue speaking when the debate is resumed.

Mr ALBANESE (Grayndler) (5.59 p.m.)—I was interrupted when I was speaking about the Prime Minister, who on 27 September said in relation to climate change that the government was not really interested in ‘what might happen to Australia and the planet in 50 years time’. This was an extraordinary statement from the Prime Minister, given that it is quite clear that many of the CSIRO predictions of what will happen in 2050 are happening right now. The Prime Minister, it would appear, is some 50 years behind when it comes to climate change.

In his second reading speech last Thursday, the Parliamentary Secretary to the Minister for the Environment and Heritage described the EPBC Act as:

‘… a world-class and innovative piece of environmental legislation. ‘

Why then is the government treating the act with such contempt? The process in this has been a farce. In government, Labor commit themselves to having a comprehensive review of the act with proper consultation processes and appropriate time for public discussion and debate. Robert Hill, for so long the leader of an endangered species in themselves, the moderates in the Liberal Party, and a former Minister for the Environment and Heritage, was very proud of the act. He stated in 1999 that it was:

‘… by far the most significant piece of environmental legislation enacted by the Commonwealth parliament.’

Importantly, he also said:

‘I think we’ve got the balance about right.’

The following year, in December 2000, Robert Hill described the act as:

‘… user-friendly. It establishes an assessment and approval process that provides certainty and that is governed by tight time frames.’

He went on to say:

‘Decisions are made in a timely and transparent manner. Assessments under the EPBC Act are being effectively integrated with state processes, avoiding delay and duplication.’

There was a time when these things seemed to matter—getting the balance right, being user-friendly and having transparency—but the Howard government has changed. There is no longer a balance in this government. Transparency has gone the way of Beta video recorders—a relic of the past, it seems. User-friendliness has gone out the window: 409 pages of amendments added to a 733-page act and rushed through the parliament. The bill upsets the balance between environmental protection and development approval. The voice of moderation is disappearing. Increasingly the climate change sceptic, the Minister for Industry, Tourism and Resources, is running environment policy in the Howard government. How else can you explain not a single mention of climate change in the bill?

Robert Hill certainly understood the dramatic impact climate change would have on Australia. He supported the Kyoto protocol, emissions trading and a greenhouse trigger under the EPBC Act. But that is long gone now. Indeed, Robert Hill said on 30 March 2000:

‘… the Howard government worked very hard to ensure that the Kyoto protocol gave recognition to Australia’s special circumstances. There are those who foolishly believe that Australia has something to win by derailing the Kyoto protocol.’

In the words of the former Minister for the Environment and Heritage, we now have a Minister for the Environment and Heritage, Senator Ian Campbell, who is indeed a fool, because he and others are attempting to derail the global agreement to reduce greenhouse gas emissions. The fact that the Howard government’s premier environmental law completely ignores climate change demonstrates how out of touch this government is. It is an inconvenient truth for the government that between 1990 and 2004 emissions rose by 25.1 per cent, once you exclude the decisions of the New South Wales and Queensland governments on land clearing.

The government has consistently boasted that the Kyoto protocol is irrelevant because Australia will meet its target anyway. You cannot have it both ways. You cannot say it is going to damage the economy on the one hand but at the same time say that we will meet our target. Last week of course the environment minister conceded that the Howard government might not meet its target at all.

Climate change is the great nation-building challenge of the 21st century—avoiding dangerous climate change, preparing our economy for a carbon constrained world, getting our energy mix right, ensuring we are world leaders in clean, renewable energy and seizing the significant opportunities that the global challenge of climate change will bring. This bill is a huge missed opportunity.

Today I offer a simple challenge to the Howard government: join the Labor Party in the fight against climate change. Support Labor’s amendment to establish a climate change trigger under the EPBC Act. Support Labor’s practical amendment, to be moved in the consideration in detail stage, to ensure climate change is an integral part of the act. Robert Hill understood the significance of a climate change trigger. Indeed, on 10 December 1999 he released a consultation paper on the possible application of a greenhouse trigger under the act. At the time he stated:

Introducing a greenhouse trigger would provide another measure for addressing our international responsibilities in relation to climate change and ensuring Australia meet its Kyoto target.

Senator Hill got rolled in the cabinet. So, instead of best practice, we have had seven wasted years.

Labor will act. I have had a private member’s bill before this House to establish a climate change trigger under the act and will be moving an amendment to this bill along those lines. This would ensure that new developments represent best practice. The climate change trigger will apply to the establishment of any industrial plan or other facility which emits or is likely to emit more than 500,000 tonnes of carbon dioxide or equivalents per year or any other action, series of actions or policies which would lead or be likely to lead to the emission of more than 500,000 tonnes of carbon dioxide or equivalents per year. Any such action will require ministerial approval, unless the minister decides that the action is not controlled under the act. If the action is approved, the minister can, under the act, attach conditions to the approval such as the need to mitigate its greenhouse emissions. Labor’s amendment also provides that the minister must consider whether the direct or indirect emissions of carbon dioxide that are likely to result from the action will be minimised by the use of best practice environmental management and low-emissions technology.

There is no argument for not accepting this amendment. The government should support this and should support other amendments. It should add a new objective to the act to protect Australia from dangerous climate change. It should add a new principle of ecologically sustainable development to note that decision-making processes should consider and minimise where possible the adverse effects of climate change. It should add a new section 3B outlining the significance of climate change and add a definition of climate change to reflect the definition of the Intergovernmental Panel on Climate Change established under the UN Framework Convention on Climate Change of which Australia is a participant. If the Minister for the Environment and Heritage really believes that climate change is a very serious threat to Australia, he will support these amendments.

Robert Hill also understood the need for the EPBC Act to evolve to consider new triggers for environmental protection. In 1999, when discussing the act’s triggers, he stated that:

‘… it will be an evolving situation reflecting community attitudes and what really is seen as the best and most appropriate mix at the time.’

In fact, the act provides for a five-year review to assess the need for any new matters of national environmental significance, the key environmental challenges that trigger the act. The most recent review was undertaken in April 2005. Its outcomes were never published and, as we can see by the amendments before the House, no new triggers have been added. In failing to publish the results of the review, the minister has failed to fulfil his obligations under his act. There are not a lot of environmental pieces of legislation in the environment and heritage portfolio, but this minister cannot even fulfil his obligations. Section 28A is very explicit. It states:

Every 5 years after the commencement of this Act, the Minister must cause a report to be prepared on whether this Part should be amended …

It goes on to say:

Before preparation of the report is completed, the Minister must cause to be published in accordance with the regulations (if any): (a) a draft of the report; and (b) an invitation to comment on the draft within the period specified by the Minister.

None of this has occurred. What is the minister’s response to his being in breach of his own act? He seeks to repeal the section. The arrogance of the minister is quite extraordinary. But this, of course, is not the first time the minister has broken his own law. The environment minister admitted in Senate estimates on 31 May 2006 that he broke the laws governing heritage protection. Under section 324J of the existing EPBC Act, the minister must gazette a decision to list a place on the National Heritage List within 20 business days of receiving advice from the Australian Heritage Council. There is no discretion in the current act; the minister cannot just delay announcing decisions due to political reasons. At the May estimates the minister did not deny that he had decided more than 200 days earlier to place Old Parliament House on the National Heritage List. The minister seemed unconcerned that he had broken the law, telling Senate estimates:

A number of decisions have not met those timelines. That is right.

That is arrogance personified from this government.

This bill is a missed opportunity. It is marked by arrogance throughout it. You see it in the attempt to curtail third party appeal rights, you see it in the undermining of public consultation processes and you see it in the further politicisation of decision-making processes. The bill contains five separate measures to strip away the right to appeal ministerial decisions before the Administrative Appeals Tribunal. They relate to threatened species, migratory species, marine species, whales and dolphins, and wildlife trade permits. This sets an extraordinary precedent. The appeal rights in relation to wildlife permits have existed since 1981. The checks and balances and transparency that were said to be such an integral part of the act are fast disappearing. Labor will restore that transparency. We will move amendments to repeal those sections of this amendment bill that remove the right to appeal ministerial decisions to the Administrative Appeals Tribunal.

The bill places even more power in the hands of the environment minister—a minister who has treated the act as his own political plaything. The bill allows the minister to determine annual themes through a priority assessment list for the listing of threatened species and heritage places. Once a year the minister will call for nominations of possible themes and the nominations will be considered by the scientific committee and the Australian Heritage Council. In the end, the minister will decide on the themes. He or she can remove items from the priority assessment list and only needs to notify the nominee and put the decision on the internet. In proposed section 194K(3) of the bill it states:

… in exercising the power to make changes to the priority list the Minister may have regard to any matters that the Minister considers appropriate.

Just think about that extraordinary provision—placing even more power in the hands of a minister who already treats the act as his political plaything. We already know about the orange-bellied parrot, a favourite of the environment minister. Who knows what other favourite threatened species or heritage themes lurk in marginal seats around the country. We know that decisions to use the act have not been based upon science; they have been based upon politics. You see it again in section 324A(5) where, in deciding whether or not to list a place on the National Heritage List, the minister must give regard to advice from the Australian Heritage Council but may also ‘seek and have regard to information or advice from any other source’— a Liberal party candidate perhaps or a National Party branch resolution. There has to be some appropriate scientific basis for this if the act is going to have integrity and if, at the end of the day, the environmental needs of this nation are not going to be set aside and undermined. This provision gives the minister carte blanche to seek advice from any source or make whatever decision he or she chooses. It undermines the integrity and the independence of the heritage protection regime.

Why would people be concerned about that? Let us look at when the environment minister has used the act. In June 2005, he tried to offer emergency heritage protection to allow cattle grazing in the Victorian Alpine National Park. That flew in the face of scientific evidence and advice from his own department. His department had advised the Victorian government in 2004 that cattle grazing in the Alpine National Park ‘is highly inconsistent with the sustainable protection and management of its natural heritage values’. That was the advice from the minister’s own federal department, but what did he do? He intervened to try to impose an outcome that was against heritage and protection of the natural environment.

That situation was repeated in the Pythonesque farce over the Bald Hills wind farm in Victoria. On 10 March 2006 the Department of the Environment and Heritage advised the minister to approve the Bald Hills wind farm under the act, because it found ‘no direct evidence of any impact on the orange bellied parrot at Bald Hills’. Nonetheless, the minister blocked the $220 million project because he thought there might be one endangered theoretical parrot every 1,000 years, thus honouring a political commitment made during the federal election campaign. Given the abuse of the act for political purposes, there is a real danger in providing this minister with even greater discretion.

There is a great irony that the environment minister abuses the EPBC Act when it is in his political interests but runs a mile from it when it requires tough decision making. Just have a look at the Australian Whale Sanctuary. The act provides for the establishment of an Australian Whale Sanctuary to give formal recognition of the high level of protection and management afforded to cetaceans in Commonwealth marine areas and prescribed waters—a legally binding safe haven for whales. What has the Howard government done with these powers? Absolutely nothing. More whales than ever before have been slaughtered in the Australian Whale Sanctuary since it was established, because the government refuses to enforce its own act. In fact, the Attorney-General has taken legal action to intervene in a court case to say that the EPBC Act should not be enforced as it would ‘create a diplomatic disagreement with Japan’. Japan as a nation is a great friend of Australia, but we do have a diplomatic disagreement when it comes to the slaughtering of whales in Australian waters, and Australians want to see our laws enforced. I am appalled that the government is making it even harder for community groups, including environment groups, to protect our natural flora and fauna by stopping appeals to the Administrative Appeals Tribunal. Labor will seek to restore AAT appeal rights, and we will continue to campaign for real action to make the Australian Whale Sanctuary a true sanctuary and ensure that the slaughter is stopped for all time.

The amendments outlined in this bill represent a further backward step in the protection of Australia’s natural cultural and Indigenous heritage. They continue the tremendous slide in heritage protection that has occurred since 1996. Labor governments, of course, have a proud record. It was in 1973 that the Whitlam government set up the Hope royal commission into Australia’s National Estate. That led to the establishment of the Australian Heritage Commission under my friend Tom Uren. The commission was responsible for managing Australia’s Register of the National Estate.

Today, that register contains over 13,000 sites of natural cultural and Indigenous significance. Tragically, the idea of an independent heritage body is now just a memory, and this bill sounds the death knell of the Register of the National Estate. That will be phased out after five years. In the second reading, the Parliamentary Secretary to the Minister for the Environment and Heritage referred to the archiving of the Register of the National Estate. Let us be honest: the register is being abolished. The bill removes the requirement for the minister to have regard to the register when making decisions, and it will disappear after five years. We will be moving amendments to restore the Register of the National Estate and to require the minister to have regard to it when making decisions.

The Howard years have been characterised by a lack of respect for our heritage. The Radioactive Waste Management Act 2005 is another brick in the wall. Among other things, this draconian act overrode the EPBC Act and Indigenous heritage laws in establishing the site for a nuclear waste dump in the Northern Territory. The Howard government has always put its political interests ahead of the national interest. Another example is the government’s attitude to Anzac Cove. In 2003, the Prime Minister promised to protect Anzac Cove forever. He promised to make it the first listing on the new National Heritage List. On 18 December 2000, the Prime Minister said:

It seems to me … entirely appropriate that the Anzac site at Gallipoli should represent the first nomination for inclusion on the National Heritage List. And, although it’s not on Australian territory, anyone who has visited the place will know that once you go there you feel it is as Australian as the piece of land on which your home is built.

Instead of protecting Anzac Cove, we know that the Howard government requested road works which damaged the integrity of the geography of the site, which had remained largely the same for 90 years. Now the government has raised the white flag. It will no longer pursue national heritage listing for overseas sites. The bill establishes a new List of Overseas Places of Historic Significance, a symbolic measure but a pathetic, weak backdown, given the commitments that had been given by government. The much vaunted National Heritage List, the linchpin of the government’s heritage regime, really has failed to live up to the rhetoric. It is not protecting our Indigenous heritage; it is not protecting our precious national heritage.

Simon Molesworth, the head of the National Trust, has described the list as ‘abysmal’. In the last 18 months, only 26 places have been added to the list. I am pleased that Labor Party pressure has increased the number of places on the National Heritage List, but there is still only one site listed in the Northern Territory and South Australia. It is outrageous that only one of our 16 World Heritage sites is on the list. That is in spite of the fact that there was a special six-month grace period under the act in which it could happen automatically.

In Senate estimates in May 2005 the secretary of the department said:

‘there was clearly a misunderstanding in the department as to the act’s meaning. That, quite frankly, is a problem. … Our understanding of the legislation is that the legislation was not what we thought it was.’

This was an extraordinary concession. The minister does not know how the legislation works, the department under the minister does not know either and yet you have 409 pages of amendments being rushed through the parliament. The Howard government have failed to address the issues of our natural environment. If they are serious, they will support Labor’s amendment, which will strengthen the act. At the moment, the EPBC Act fails to address the great environmental challenge of climate change. The Australian public will judge this bill very harshly if it is not amended, and that is why Labor will oppose this bill if it is not amended. The EPBC Act has failed when it fails to address the major issue facing Australia leading to a plant and animal extinction crisis where 20 per cent of our species are threatened with extinction by the end of this century. We have a number of challenges before us. I commend my amendment to the House. (Time expired)

The DEPUTY SPEAKER (Hon. BC Scott)—Is the amendment seconded?

Ms George—I second the amendment and reserve my right to speak.

The DEPUTY SPEAKER—The original question was that this bill be now read a second time. To this the honourable member for Grayndler has moved as an amendment that all words after ‘That’ be omitted with a view to substituting other words. The question now is that the words proposed to be omitted stand part of the question.