Shayne Neumann (Blair, Australian Labor Party, Shadow Minister for Indigenous Affairs) Share this | Hansard source

I do not know whether to applaud that comedy show that we saw from the member for Braddon. He certainly cannot be serious about what he said in relation to the Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015—hyperbole heaped upon hyperbole, accusing the court process and judiciary of terrorism. That is what he did. It was extraordinary even by its own standards. The Abbott government has emitted plenty of purple prose, and we certainly heard that from the member for Braddon tonight. We heard ridiculous talk from him and from various ministers. I wondered what his attitude would have been in relation to the Franklin, Fraser Island or the Great Barrier Reef and to people who were interested in all of those great environmental causes.

But let us have a bit of a calm and rational look at the bill itself and see what it means and why we are discussing this. I have heard many speeches from those opposite but not much about the legislation or what it actually says. Put simply, through this bill, the Abbott government seeks to repeal section 487 of the EPBC Act. That act has been the Australian government's central environmental protection law for the last 15 years, for the Rudd government, the Gillard government and the Howard government. The first stated object of the act is:

… to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance …

Section 487 of the act deals with standing—that is, locus standi: what is required for an individual or a group to be considered a 'person aggrieved' under the act. Individuals or groups who satisfy section 487 may then seek a judicial review of a decision or a failure to make a decision, or conduct engaged in or for the purpose of making a decision, under the EPBC Act or the regulations.

It is clear that a person aggrieved may only seek a judicial review of the legal validity of an administrative decision, not the merits of the project itself. It is not a merit review such as under the AAT. That is important to note, given some of the government's sillier rhetoric and that of those opposite in relation to this particular bill. At present, sections 487(2) and 487(3) of the act extend the meaning of a 'person aggrieved' found in the Administrative Decisions (Judicial Review) Act 1977. Section 487(2) extends the meaning of a 'person aggrieved' to an Australian citizen or resident who has:

(b) at any time in the 2 years immediately before the decision, failure or conduct … engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment.

Section 487(3) extends the meaning of a 'person aggrieved' to an organisation or association incorporated or established in Australia, provided that:

(b) at any time in the 2 years immediately before the decision, failure or conduct, the organisation or association has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment; and

(c) at the time of the decision, failure or conduct, the objects or purposes of the organisation or association included protection or conservation of, or research into, the environment.

Sounds like a bunch of terrorists to me—doesn't it, Deputy Speaker! Certainly not!

The government has made it clear that it seeks to repeal section 487 to prevent third parties from seeking judicial review of an EPBC Act decision unless those parties meet the strictest standing test found in the Administrative Decisions (Judicial Review) Act 1977. By repealing section 487, the Abbott government will simply make it far harder for ordinary Australians—or normal Tasmanians, as the member for Braddon talked about—to appeal projects that have significant impact on the environment. People and organisations will need to prove that they will be directly and adversely affected by the project. Few will clear that hurdle. Even if they do, they must have the financial means to make the complaint to the court and the capacity to withstand substantial costs orders awarded against them if they lose.

Through this bill, the Abbott government is deliberately, wantonly and fatally weakening environmental protections at a time when our environment is under greater threat than ever.

It is a retrograde step, that severely limits the community's long standing right to challenge the legality of a mine or major industrial development. There is an eerie reminder, as a Queenslander, in this bill of the former Queensland Campbell Newman LNP state government's dead of the night, legislative changes that stripped landowners and communities of the right to object to mining projects. Under Campbell Newman's government, appeals were restricted to landowners who would be on the mining lease, immediate neighbours and local councillors. I am pleased that the newly elected Palaszczuk Labor government, recently delivered on its election promise, and overturned these LNP government restrictions and restored the right of community appeal. Unfortunately, the Abbott government seems to be going the way of the former Campbell Newman LNP government in terms of both the legislative response and—we hope that at the next election—the political outcome.

The government wants to prevent people, say, in Ipswich in my electorate from having a right to appeal a major mining development just outside the city limits. It wants to stop famers in the Somerset region in my electorate from seeking judicial review of a decision to allow a nearby development that threatens a habitat. It wants to prohibit any Australian from protesting a development that threatens endangered flora or fauna. It is not just Labor who is raising concerns. We have had notable Australians in the last few days commenting in relation to it. Someone who does not normally support the Labor Party is Alan Jones. In The Guardianon 7 September 2015, he said:

The latest move by the Abbott government puts at risk not just our environment but our very democracy. It is quite simply unbelievable.

This legislative restriction is divisive, it isolates us. It means we are not allowed to care.

Alan Jones is not normally a friend to the Labor Party, but he is far better friend to the environment than the Prime Minister. Other mutterings of discontent have emerged from the government in the last few weeks. It is not a surprise that the government's radical plan to weaken the environmental protections and limit the community's right to challenge decisions has caused disquiet within the coalition ranks.

It is certainly no surprise when we learnt of another leak from the coalition party room. While the government may have nobbled the NBN, it has accelerated the release of confidential information from its party room to lightning speed. We read about that online and in the national media all the time. On 19 August, The Guardian Australia reported that these concerns were raised by none other than the father of the House, member for Berowra, who was a Howard government minister and former Chief Government Whip. He was until the Prime Minister's brush with political mortality in February, was the Chief Government Whip in the current parliament. The Guardian reported him as voicing concerns in the coalition party room after the Attorney-General discussed repealing section 487 to combat what he described as green vigilantism. According to the leak, the member for Berowra was not buying that and argued that the problem was an abuse of legal process, as the Attorney claimed, and that problem should be resolved in the courts.

We believe the community should retain its rights to valid concerns about major environmental projects and have the validity of the minister's decision tested in court. Remember, as it stands, communities only have the right to challenge when the decision was not lawfully made—not on the merits of the project under legislation. This right, even if not exercised against a particular decision, increases public confidence in the planning process. It builds accountability and transparency in the system. It acts as a bulwark against corruption. It encourages governments and developers to adhere to the law. It provides a strong incentive for better environmental assessments and outcomes.

Let us talk about the real reason the government wants to repeal section 487: the Federal Court's decision in August this year to set aside the government's approval of Adani Carmichael coalmine project in central Queensland. There is plenty of bluster and blatant misleading from the government about its decision. A lot of sound and fury and it is really quite confected.

Here are the facts. According to a statement released by the Federal Court on 4 August 2015, a judge of the court made the following orders setting aside the minister's decision: 'The orders were not made after hearing. There was no judgement. There were no findings. The orders were made by consent—that is, with the agreement of the parties to the litigation.' So the decision to set aside the minister's decision was made by consent between the Australian Government Solicitor, representing the minister representing the Minister for the Environment, Adani Mining Pty Ltd and the Mackay Conservation Group.

Why was the decision set aside? It was simply and only because the minister made an error. Again, in the words of the Federal Court: 'The minister found the proposed action would have significant impact on two threatened species. There were conservation advices provided to the minister in relation to these species. Under terms of section 139(2) of the act, it was mandatory to have regard to the approved conservation advices. 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.' There you have it.

The Minister for the Environment in the Abbott government failed to follow the rules—rules that have been in operation for 15 years, legislative rules introduced by the Howard government. All the minister had to do to get it right was follow his own rules. Instead, he fluffed it and his incompetence was caught out in the court process. His own botch-up has left proponents of the mine more than a little unhappy. Adani said in its statement:

It is regrettable that a technical legal error from the Federal Environment Department has exposed the approval to an adverse decision.

And in case you were wondering about the skink and the ornamental snake, the threatened species, Adani added: 'It should be noted the approval did include appropriate conditions to manage the species protection of those two threatened species. However, we'—Adani—'have been advised that, because certain documents were not presented by the department in finalising the approval, it created a technical legal vulnerability that is better to address now.' The minister bungled it; that is what happened. And they are trying to cook up a confected faux crisis because the minister fumbled it in the litigation. There is no crisis in the Australian environmental regulation system but the Prime Minister, never shy of a leap of logic, even claimed that the EPBC Act is threatening jobs when the only threat is from the minister, his own minister's inability to follow the rules.

The minister's second reading speech is peppered with references to the Americanisation of the Australian judicial system. It is a delicious and unmissable irony when you consider that the Abbott government wants to bring in an Americanisation of our higher education system by introducing up to $100,000 degrees. This is a government that seems hell-bent on Americanising our health system but all of a sudden thinks that our environmental system and our legal system is Americanised and so has to put shields up to protect the Australian community against it.

Across the 15 years of the legislation, from July 2000 to now, about 5,500 projects were assessed under the EPBC Act. Of those 5,500 projects, there were just 33 Federal Court judicial challenges against 22 projects and that works out to a judicial referral rate of 0.4 per cent across 15 years. That is all it was, 0.4 per cent across 15 years. Why are we here in this place now? Why are we here? Because the Abbott government seems content to talk about nothing concerning its record of government economically in which it has failed. It wants to deflect the crisis that it created in its own litigation by the minister and his department's own decisions.

The Labor government in Queensland supports this project. But the minister could not get himself together to sort out the legal process and do the right thing. The Abbott government has failed. Today we have got legislation that is trying to avoid the real information that the public needs to know—that the Minister for the Environment is incompetent and the Abbott government has totally fluffed it.

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