Sep 9, 2015

Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 – Second Reading

Mr ALBANESE (Grayndler) (11:00): I am pleased to rise on behalf of the Australian Labor Party to oppose the latest act of vandalism by this government against Australia’s natural environment, an action which does not seek to repeal a decision of the former Labor government but, instead, repeals legislation introduced by that radical environmentalist, John Howard. Even before this latest example of overreach, Tony Abbott had well and truly established himself as the worst Prime Minister in modern Australian history when it comes to the protection of our natural environment.

Kevin Rudd’s first act as Prime Minister was, proudly, to ratify the Kyoto protocol, an act that Labor had campaigned long for in opposition, including private members’ bills I brought before this parliament when I was Labor’s environmental spokesperson. But one of Tony Abbott’s first acts stands in stark contrast to the act of the Rudd Labor government. It was of course to abolish the Climate Commission, a body made up of scientists, businesspeople and economists tasked with providing the community digestible information about climate change. That was what they attempted to do in their first legislative act on the environment before this parliament.

Notoriously, we know that Tony Abbott made Australia the first nation in the world to dismantle a carbon pricing mechanism; in particular, abolishing any legal cap or target on carbon pollution levels for 2020 and 2050. Unsurprisingly, Australia’s carbon pollution levels have started to rise again, particularly in the electricity sector. He also broke his promise to keep the renewable energy target in place, causing investment in large-scale renewables in Australia to plummet by 88 per cent while it soared by 16 per cent globally. And he is still trying, in vain, to abolish ARENA, the Australian Renewable Energy Agency, and the CEFC, the Clean Energy Finance Corporation.

The Prime Minister’s opposition to strong and sensible action on climate change is well known. Perhaps less notorious have been his repeated attacks on Australia’s natural environment. The Abbott government tore up the Tasmanian forestry agreement that had ended 30 years of conflict in that state, an agreement negotiated by the forestry industry, the union and environmental groups with the support of the state and federal governments. This was a blatant act of vandalism with no apparent thought given to the consequences for the industry being able to achieve certification of its product for export—a simple act of ideology based on the view expressed by the Prime Minister that Australia has more than enough trees. He then embarrassed the nation by taking an unprecedented application to the World Heritage Committee to delist 74,000 hectares of world heritage-listed forest in Tasmania, an application that was dismissed out of hand by the committee.

The Prime Minister has also repealed the management plans designed to protect Australia’s marine reserves, the largest in the world at the time of their proclamation by the member for Watson. Two years on, there is still no idea what the Abbott government intends to do with our marine environment. This government also remains committed to washing its hands of the decades-old responsibility of Australia’s national government to protect our assets of national environmental significance. For more than 40 years, this responsibility has been embraced and discharged by Commonwealth governments of both political persuasions. This extraordinary decision would handover this parliament’s responsibility—for example, to protect the Great Barrier Reef, one of the seven natural wonders of the world—to state and local governments.

I could go on listing the atrocities committed by this government against our extraordinary natural environment, which is ours to enjoy but ours to also show a responsibility to protect for future generations to come. The Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015, though, is perhaps the pinnacle in petulance by the Prime Minister in this policy area, certainly not a decision of the adult government we were promised—more like the behaviour of a schoolboy angry at having kicked an own goal.

Let us be clear: we are not at this point with the Adani project in the Galilee Basin because of what you read in the screaming headlines of some newspapers about ‘lawfare’ or, as the Attorney-General described it, vigilante litigation; we are at this position with Adani because the government failed to comply with its own law because the government realised its own plunder and then made itself an application to the Federal Court to set aside its earlier approval of the Carmichael mine.

Indeed, because of the blatantly misleading statements made by some members of this government and some media commentators about the Adani decision, the Federal Court took the extraordinary step of issuing a statement about the case. It is worth reading the statement into Hansard in full. The following can be attributed to a Federal Court spokesman if required. They said this:

The purpose of this statement is to correct media reports about the making of orders by the Court affecting the proposed Carmichael coal mine project.

On 12 January 2015 the Mackay Conservation Group filed an application for judicial review of the decision of the Minister for the Environment made under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Act) to approve proposed action to develop an open cut and underground coal mine, rail link and associated infrastructure in central Queensland, subject to certain conditions.

On 4 August 2015 a judge of the Court made orders setting aside the Minister’s decision. The orders were not made after a hearing. There was no judgment. There were no findings. The orders were made by consent, that is, with the agreement of the parties to the litigation.

Proposed orders were presented to the Court in a letter from the Australian Government Solicitor (AGS), who acted for the Minister and the Commonwealth. The letter was written with the agreement of the other parties: Mackay Conservation Group and Adani Mining Pty Ltd.

In the case of an agreement by parties to litigation to set aside a decision of the Executive, the Court’s usual practice, known to the parties, is that the Court be informed of the error sufficient to set aside the decision. In this case that was done in the letter from the AGS.

The basis of the parties’ request and the basis upon which the orders were made was that:

1. The Minister found that the proposed action would have a significant impact on two listed threatened species: the Yakka Skink and the Ornamental Snake

2. There were conservation advices approved by the Minister for those two species.

3. Under the terms of s 139(2) of the Act, it was mandatory for the Minister to have regard to the approved conservation advices.

4. In deciding whether or not to approve the proposed action, the Minister did not have regard to the approved conservation advices.

5. The Minister did not have regard to the approved conservation advices because they were not included in the material that was before him at the time he made his decision.

What an extraordinary statement from the Federal Court, setting out the facts of how the Federal Court arrived at that position—agreed to by the Australian Government Solicitor, Adani and the Mackay Conservation Group. It is also worth noting from the statement that the applicant in this litigation was the Mackay Conservation Group, a grassroots community-based organisation from North Queensland, run by a committee of dedicated volunteers.

Members of the government continue to pretend that the litigants were the New South Wales Environmental Defenders Office and make much of the distance between their Sydney office and North Queensland. They might have represented the Mackay Conservation Group, but that is hardly relevant; it was the group based in Mackay in that local community who made the application. I would be surprised if Adani was using the services of lawyers from the Galilee Basin.

It is now well understood that the consent decision to set aside the Adani approval was only the sixth time in 15 years that a development approval has been successfully challenged in court, and only the second occasion in more than a decade. Over the course of those 15 years, some 5,500 projects have been referred under the EPBC Act to the minister. The only other project that was successfully challenged during the past decade was reassessed and ultimately approved anyway.

It is abundantly clear that there is no problem requiring a solution here—except perhaps for the government to fix up its own internal assessment and approval procedures. This was a failure of internal government procedures by the Abbott government and by this minister and his department. Yet they seek this radical legislation before this parliament to undermine this core environmental legislation—which was established by the Howard government and which has been operating effectively since its introduction—which provides certainty for industry and provides confidence for the community.

This is just another example of a Prime Minister determined to engage in conflict; it is a distraction from his long list of failures and internal division. It is very clear that this is a Prime Minister who had a plan to get into government but does not have a plan to govern. This is a government that does not have a sense of purpose and is, therefore, looking for disagreement rather than building consensus in the community. It is no wonder that some of the government’s strongest supporters historically are its strongest opponents on this and other issues when it comes to a balanced and common-sense approach to environmental legislation. I congratulate people such as Alan Jones and others who have been prepared to stand up and articulate their strong views in what they see as the long-term national interest on these and other issues. The problem for this Prime Minister is that he is much more comfortable wrecking, negating and destroying than building.

As I said earlier, the bizarre thing about this latest proposal is that the provision that this bill seeks to repeal is a legacy of the Howard government, a provision introduced in 1999 which commenced operation in 2000. This provision was created for a very good reason. Environment groups and project proponents had been battling it out in the courts for years to work out what the rules for standing in court procedures were. The High Court in 1980 decided, in a case brought by the Australian Conservation Foundation, that the interest of an environmental organisation on the environmental impact of a proposed development or project was, in the words of Justice Gibbs, ‘A mere intellectual or emotional concern’, which was insufficient to give it legal standing. That, of course, is because common law has always based the concept of standing or the right to take legal proceedings on the ability to demonstrate an interest that the person or organisation taking the preceding has and which is being adversely impacted by the project. While this obviously makes sense where a project might impact someone’s property or business interests, indeed their private economic interests, environmental protection laws are primarily directed at protecting public interests. The entire general public has an interest in the protection of our natural environment. Indeed, there is a very real argument that those of us here today have a responsibility for those who will follow us tomorrow to make sure that we leave a legacy of an enhanced rather than a degraded natural environment. We know that this is not just about environmental concerns. There are good social policy reasons why a natural environment is important but there are also fundamental economic interests of why the natural environment is critical in the short, medium and long term to Australia’s national interests.

It is pretty easy to think of some examples of projects that would impact important environmental assets but that would not involve anyone’s private interests in the short term. Take the World Heritage properties protected by the EPBC Act in accordance with our international legal obligations. A proposed project that would adversely impact on the Great Barrier Reef might not impact anyone’s private interests;—obviously the reef itself cannot take legal action if the minister again fails to apply his own laws properly—only a representative organisation can take an action which would hold the government to account. Or take the threatened species that are protected by the same legislation. The Tasmanian devils were not able to take action in the Shree Minerals case a couple of years ago; instead, it fell to an environmental organisation to do it for them. These examples are serious examples because the message from the government, in relation to all of these matters protected by this legislation, is that you will simply have to trust the government. If a project threatens Australia’s World Heritage properties or endangered iconic species, no-one will be able to challenge this government in court. No-one will be able to stand up for the environment in court.

The government appears to be at pains to assure Australia’s farmers that they are not the target of this legislation and that they will still be able to take the government and developers to court if their landholdings or businesses are adversely impacted by a development. I will mention only in passing the utter confusion among government ministers around what was actually being proposed when this was first announced. I guess that is what happens when the Prime Minister announces policy on the run in question time with no draft legislation, with no consultative process and when the relevant minister is out of the country.

The Attorney General told the Senate that only part of section 487 was being repealed such that farming peak bodies would still be able to take representative actions in our courts. Apparently, the Minister for Agriculture was busily assuring his constituents the same thing. Ridiculously, two different sets of government talking points were apparently circulating amongst coalition members in the parliament, one set suggesting that only part of the provision would go, in keeping with the Attorney-General’s assurances to the Senate, and the other set suggesting that the whole provision would be repealed. We know now that the Attorney-General either was misinformed or did not read his brief carefully, because the bill seeks to repeal the entire provision of section 487.

Still, the Minister for Agriculture has assured farmers that they will still be able to take legal action. The farmers know that that is not the case. It is crystal clear that they would have to do so now on an individual basis, demonstrating that their private interests were adversely impacted and pitting themselves alone against the resources of multinational companies and the Commonwealth government. We have seen from the controversy around the Shenhua mine in the Liverpool Plains that fine legal points will be able to be drawn out by high-powered lawyers acting for the companies and government over whether or not a particular farmer is actually impacted by a development proposal. Even if the Minister for Agriculture has so little regard for the representative work of Australia’s environmental organisations, it beggars belief that he could possibly have supported this legislation in the cabinet in the light of what it does to Australia’s farmers and their representative organisations.

They are awake. They are onto this minister. This is what the Vice-President of the National Farmers’ Federation, Fiona Simson, said:

The Adani decision seems to have been caused by either Adani or the department not applying the law properly, but then, suddenly and with no warning or consultation, we get this put forward … we prefer evidence-based policy making.

Evidence based policymaking—that is what the National Farmers’ Federation are saying they support, and that is what good government should provide for. Tim Duddy, farmer and Chairman of the Caroona Coal Action Group, which is campaigning against the Shenhua mine, raised the obvious objection that even a directly affected farmer would be risking their farm from a costs order if they took legal action against a multinational company.

The idea that we should simply trust this government to protect Australia’s natural environment, free from judicial review, would be laughable if it were not so very serious. But Labor does not oppose this legislation just because of this government’s appalling record on the environment; we do so as a matter of principle. The right of citizens with standing to challenge their governments in court is a fundamental pillar of a robust democracy. We must not set this principle aside simply to provide a drowning Prime Minister with a headline and a stoush.

The need for a provision that reflects the unique public interest involved in protecting Australia’s natural environment is patently obvious. The New South Wales Independent Commission Against Corruption has also reinforced the importance of third-party appeal rights against development approvals from a public integrity perspective. In its 2012 report Anti-corruption safeguards and the New South Wales planning system, the commission made this important point on page 22:

Third party appeal rights have the potential to deter corrupt approaches by minimising the chance that any favouritism sought will succeed. The absence of third party appeals creates an opportunity for corrupt conduct to occur, as an important disincentive for corrupt decision-making is absent from the planning system.

As a general proposition around the integrity of public decision making, that is absolutely correct. The former Attorney-General and current Father of the House, the member for Berowra, obviously had these matters in mind when he apparently raised his concerns about this bill in the Liberal Party room meeting just a couple of weeks ago. He also made the obvious point that, if people were concerned about vexatious litigation becoming rampant under this legislation, there are other ways for that to be dealt with, through costs orders and the like, preferably by the courts themselves instead of a Prime Minister desperate for diversions and making policy on the run.

The right of citizens and their representatives to take legal action where they believe their government has failed to comply with the law can be deeply inconvenient and sometimes embarrassing for a minister and the government, as it is for this minister over his incompetence when it comes to the Adani application. But it is a fundamental part of a transparent and properly functioning democracy, and this parliament should not trash those democratic principles as a matter of convenience for the coalition and this Prime Minister. Where legislation seeks to protect public interest—in this case, the protection of our natural environment—as well as private interests, there needs to be special provision made around standing to take legal action.

Even for a government with the appalling record that this one has on Tasmanian forests, on our marine reserves, on action on climate change and on every aspect of environmental protection, this bill is beyond the pale. It seeks to remedy a problem that exists mainly in the feverish imaginings of right-wing bloggers and a Prime Minister desperate for a fight. That is why the Australian Labor Party will oppose this bill. This bill should be withdrawn and rethought by this Prime Minister and by the coalition party room. It is indeed a tragedy that issues which often have been the subject of consensus in this parliament about protection for our environment have gone so far under this reactionary Prime Minister that we are seeing this legislation.

The members of the coalition and the Prime Minister from time to time describe themselves as conservatives. Conservatives seek to protect what is there, although they might be afraid of progressive change and might not want to embrace change moving forward as a society. Well, there is nothing conservative about this legislation. This is about winding back the gains of the past—winding back the gains not of a Labor government but of the Howard government—which is why this legislation can be truly described as reactionary legislation, why this government can be described as a reactionary government and why we will reject this legislation.