House debates

Monday, 9 December 2013


Environment Legislation Amendment Bill 2013; Second Reading

6:23 pm

Photo of Jill HallJill Hall (Shortland, Australian Labor Party) Share this | | Hansard source

I rise to speak on the Environment Legislation Amendment Bill 2013. I say very strongly that this is bad legislation, tabled by a government that is not prepared to take proper steps to protect Australia's environment. The federal government plays an important role in overseeing protection of our environment. This legislation allows the federal government to abrogate its responsibility for the environment to the Australian people, and give the states a much freer hand without properly scrutinising them.

As a whole, this bill will be giving with one hand and taking with the other. In effect, it removes the legislative requirement for ministers to consider threatened and endangered species when approving projects, while increasing penalties for the illegal hunting of turtles and dugongs. On the one hand, they are saying 'We're not going to look at what you're doing' and, on the other hand, they are saying 'We're going to increase the penalties.' It is very difficult to increase penalties in these circumstances, particularly when you look at the history relating to the enforcement of these penalties for the illegal hunting of turtles and dugongs.

Over a number of years, I have been actively involved in looking at issues surrounding the environment. I was a councillor in local government and for a little while was a state member of parliament. I know the problems that are associated with development approvals. Sometimes a project is only properly considered when the federal government looks at the impact a particular action will have on a threatened species. In this case, the minister is moving away from that. Under these changes, a minister can approve a development that causes direct harm to turtles and dugongs, without even considering the impact, while at the same time increasing penalties for others who have harmed these animals. They can, on the one hand, increase the penalties but, on the other hand, take away a minister's responsibility. That is not good enough. As a parliament, we owe it to the Australian people to take these issues a lot more seriously than this legislation does.

It is not just about the federal minister. When plans delegated to approve powers to Queensland and New South Wales come to fruition, Barry O'Farrell in New South Wales and Premier Newman in Queensland will have the power to be relieved of the duty to consider conservation advice before approving projects. Under the legislation, the O'Farrell government—I know a little about its activities and have seen some of the projects that have been approved—will have greater power. This causes me a lot of concern.

There have been a number of projects within my electorate that I have serious concerns about. If the proposed legislation this parliament will be considering comes into effect, in some cases, state governments will be considering or granting approval for their own projects. That should cause concern for every member of this House, because there are times when self-interest can outweigh the benefit to the community as a whole. We on this side of the House are opposed to the weakening of these powers, because we do not believe that you can trust state governments. I certainly would not trust Barry O'Farrell, who has allowed shooters in national parks, or Campbell Newman, who I would not trust to look after the Great Barrier Reef.

They are really important assets of our country, and we are prepared to water down the effect of the sanctions, the protections, that are in place. The current penalties for the hunting of dugong, if they reflect anything, are not being used—and here we are increasing them.

We on this side of the House strongly support greater protection for turtles and dugongs, but we do not support the weakening of power. This bill will drastically weaken the EPBC Act in its protection of threatened and endangered species. That comes back to what I was saying when I started my contribution to this debate. There are developments in my electorate that have only been reconsidered or changed because the federal government forced the developers and the approval authorities to look at the threatened and endangered species. This bill removes any capacity to legally challenge an approval on the basis that the advice was not properly considered. It does this retrospectively. Not only are we taking away that power, not only are we saying that it does not matter if everything is not properly considered and that it does not matter if the minister has not taken into account all the issues, but we are doing this retrospectively. I am never comfortable with retrospective legislation and I am particularly uncomfortable with this legislation.

Often in this place we forget how important the environment is. If we do not look after the environment practically every aspect of our lives will be impacted upon. We need to look after the environment; the farmers need to look after the environment because it is about preserving their livelihood; and the tourism industry needs to look after the environment because it is about preserving their livelihood. We are talking about the dugongs and the turtles which are both tourist attractions. If we do not have the proper mechanisms in place and if we do not have the proper legislation in place to ensure the protection of these vital species, our environment and the endangered species, then we are putting a lot at risk.

I cannot support any bill that is going to weaken environmental laws. I think that further down the track those on the other side of the House will look back and say, 'I had the opportunity when I was in federal parliament to ensure that our environment was properly protected. I had the opportunity to see that our endangered species were protected and that the act that covers them was properly enforced. Instead of that, I took the easy way out. I took the way out that allowed me to say: 'Let's abrogate our responsibility. Let's hand it over to the states. By the way, when we hand it over to the states, if they do not take everything into consideration as well, then I suppose that is okay. We'll let them get away with it.' It is all about weakening environmental protection. That is something that we cannot support on this side of the House.

Depending on the type and the location of a project—for example, a new housing estate, or a new mine, or a port expansion—when we look at advice in relation to threatened species, then it could have a really big impact. When the government is preparing to hand over environmental assessments and approvals to state governments like Queensland and New South Wales, it is an even greater worry. The changes in this bill not only mean that the federal minister does not consider expert advice; they also allow state ministers to not consider expert advice. I know there have been some problems in the past, but this is using a sledgehammer to secure a tack.

There has been a lot of commentary on this and it has not been favourable. When the government first touted that it was going to introduce this bill, it was opposed by a number of environmental groups, by people in the community and by people who are experts in the area. It was also highlighted that the proposed changes to the law would be retrospective so that any approval by the minister up until now would be insulated against any type of legal action. The amendments will apply retrospectively to ensure that past decisions are not at risk of being invalid. Cases have been heard time and time again which make the minister and the government of the day a little more accountable. What is the point of even having an environment minister if he is not prepared to listen to advice about the environment? It is very important that advice is sought, that advice is received and that the minister consider that advice. Failure to do so shows that the minister is not serious about his portfolio. It also shows that, rather than look at ways to properly consider issues, the minister is more worried about actions in the Supreme Court or actions that come out of the fact that he has not looked at the issue properly. I think alarm bells are ringing throughout the country, following the introduction of this legislation. I implore the government to think about this a second time.

The bill before us is not good legislation. It is not going to deliver accountable, transparent government to the Australian people. Rather, it is going to deliver a system that will allow the cover-up of bad decisions, it will allow ministers to be very lazy in their approach to the assessment process, it will not ensure the future of endangered species and it will not ensure that the Commonwealth really fulfils its role. There is a lot of talk about green tape and cutting green tape. If cutting green tape means that we do not have proper environmental protection in place, then I think it is bad legislation.

Mr Deputy Speaker Vasta, I urge you and other members of this House to take a second look at this legislation and to look at ways that proper environmental protection can be put in place. Environmental protection is essential if we are to enjoy a sustainable future. This legislation opens the door for poor decision making and allows both the federal and the state ministers to abrogate their responsibilities completely. It will remove transparency from the process and it will remove accountability. It is legislation that is allowing governments to be lackadaisical. It is poor legislation and it should be rejected by this House.

6:38 pm

Photo of Melissa ParkeMelissa Parke (Fremantle, Australian Labor Party, Shadow Assistant Minister for Health) Share this | | Hansard source

I am glad for the opportunity to speak about the flaws contained in this bill, the Environment Amendment Legislation Bill 2013, which will undoubtedly weaken Australia's environmental protection framework. That framework has been painstakingly assembled, and it will be no surprise to anyone that it has largely been assembled by Labor governments. It is unfortunate that coalition governments at state and federal level, when it comes to the custodianship of Australia's environment, are inclined to err on the side of large commercial interests in relation to finding the right line between development and environmental protection, when it must be said that those commercial interests are quite capable of putting their own best foot forward and it is government's role, without question, to err on the side of environmental protection.

The environment is a part of the global commons that belong to all of us. Government is our representative and our voice in support of its appropriate care and conservation. As other members have noted, this bill essentially permits the minister to have less regard to the advice of conservation experts and it accords that advice much less weight or significance by removing the capacity for a decision made under the Environment Protection and Biodiversity Conservation Act to be reviewable where a minister has not received or had regard to expert advice. On the face of it, such a change is hard to fathom. It is absolutely right that environmental assessments and decisions relating to development that has environmental impacts ought to be informed and guided by appropriate expert advice. Indeed, if there are shortcomings in the current system, in my view they lie more in the area around issues of independence in terms of professional environmental advice and assessments, especially with regard to those that are commissioned and paid for by development proponents.

The use of the Tarkine case as justification for this bill's weakening of basic environmental and administrative requirements is bewildering. In the Tarkine case the relevant advice was not provided to the minister. It was a departmental process failure, an administrative failure and not in any way a shortcoming of the current framework. Ultimately, the decision in Tarkine cured the administrative failure by requiring that the advice be provided so that it could be considered. This occurred and the decision was then properly taken. I think the average person in the street—the person who in English case law was once referred to as the 'man on the Clapham omnibus'—would see the folly of addressing the administrative shortcomings of a particular decision by altering national law to ensure that any future decision that suffers a similar administrative flaw can effectively be deemed valid.

The requirement that a decision maker have regard to certain facts, criteria, considerations or advice—as is the case under section 139 of the EPBC Act—is a very common feature of a properly structured decision-making process. If the failure to have appropriate regard to such advice has no consequences, what is the point of requiring the provision of such advice in the first place? If decisions that involve significant expertise can be made without regard to expert advice, what confidence can the public have in the quality of government decision making? If the regulatory framework is watered down to such a degree, how can anyone make a reasonable argument that the proper and necessary consideration is being given to environmental conservation and protection?

This bill extends to state governments the weakened scrutiny of potentially unacceptable impacts on the environmental and biodiversity values of an affected area. It will mean that, where a decision is delegated to a state government, the failure to take account of expert advice in making that decision will not affect its validity. Again, one has to ask: what is the point of requiring the provision of expert advice and requiring that it be paid due regard if in fact neither of those things are necessary ingredients of a valid decision?

In my home state of Western Australia we have seen the kind of decision that is made when develop-at-all-cost state governments preside over an insufficiently rigorous environmental assessment and protection process. In fact, we saw a state government decision taken in relation to the James Price Point gas hub proposal on advice from the Western Australian Environmental Protection Authority that was formulated despite four of the five EPA board members having recused themselves on the grounds of conflict of interest. The WA Supreme Court ultimately found the EPA and state government processes to have been fatally flawed. Prior to that decision, the EPA chairman, Paul Vogel, tried to allay concerns about the EPA process by reference to the provision of expert advice. He said, 'I actually have access to expert technical and scientific advice across the office of the EPA, the Department of Environment and Conservation and any other agency that I deem necessary to inform my decision.' The message here from the WA EPA chairman is that important decisions affecting the environment must be evidence based. Yet, with the changes that this bill contains, ministers—including state government ministers—will be able to make decisions without having received expert advice.

The coalition government is relying on a simplistic and reductive abhorrence of so-called red tape or green tape in tearing away the kinds of regulatory constraints that have been fashioned over some time and that exist for very good reason. These are the kinds of regulatory restraints that rightly meet the community's expectation that government policy, departments and ministers will rely on evidence, science and expert advice to protect and conserve the environment that we all share and that we all enjoy on trust for future generations. This bill uses a spurious excuse to make changes that abrogate government's responsibility to perform that protective role in relation to Australia's fragile and precious environment.

I would like to associate myself with the eloquent remarks by the member for Wills on this bill to the effect that we should be strengthening rather than weakening the protections in the EPBC Act. The member for Wills referred to many endangered species, including a number of parrots. I am especially pleased that he mentioned one of the most endangered species of all, the beautiful western ground parrot, which is one of the rarest parrots in the world and almost extinct. Unique to Western Australia, there are less than 110 of these parrots left and their numbers are declining fast. It is unspeakably sad to contemplate the extinction of a species, and I pay tribute to the Friends of the Western Ground Parrot for their efforts to raise awareness and funding for the preservation of the western ground parrot. I am also grateful for the contribution to the community debate on the need to strengthen the EPBC Act by the Places You Love campaign, including such organisations as the Australian Conservation Foundation, The Wilderness Society, WWF, state and territory conservation councils, national parks associations and EDOs, as well as many other groups. These organisations represent over 1.5 million Australians, people who love our wildlife, the natural environment and our national parks.

As parliamentarians we have a duty to look after our unique shared natural heritage. When the time comes to leave this place, this should be one of our most important legacies.

6:46 pm

Photo of Greg HuntGreg Hunt (Flinders, Liberal Party, Minister for the Environment) Share this | | Hansard source

I want to thank all of the members for their contribution to the debate on the Environment Legislation Amendment Bill. The bill provides legal certainty for decisions under the Environment Protection and Biodiversity Conservation Act 1999. It provides additional protection for turtles and dugongs under the EPBC Act and the Great Barrier Reef Marine Park Act 1975. The need for these improvements to national environmental law has arisen as a result of recent case law, and, separately, concerns about the illegal poaching and trading of turtles and dugongs.

Let me deal first with the question of the conservation advice amendment. This is actually fixing up a mess caused by the previous government. We are helping them out. There is an existing set of appeals. There could potentially be more based on technicalities. These could cause endless delay without there being any substantive basis for the claims of improper decision making. We know that the other side is in agreement with this. What they are doing at the moment is in breach of what we understood to be the direction they would head. So in good faith we have entered into discussions so as not to delay this—to ensure that there is a sunset clause on this legislation with regard to decisions made by 31 December of this year. In other words, we are covering and protecting all of the decisions made by the previous government and are setting 31 December for the sake of clarity and precision. We are doing that in good faith, and I would hope that members opposite, and in particular the shadow minister opposite, would not act in contravention of the good faith shown, the discussions had and the actions taken.

We are repairing that which was broken under a previous administration and we are not even requiring that this protection apply to us. We are making the decisions properly on our watch. We are making the decisions carefully on our watch. And it is passing strange that the people who made the mess are now opposing others cleaning up their mess. I think that the relevant previous minister and the relevant current opposition shadow minister know that to be the case; they know that it would be utterly inappropriate for them to stand in the way of us cleaning up the mess. Nevertheless, in good faith, we will make sure that this has a sunset clause. I will move an amendment to that effect during the consideration in detail stage. That is a significant move. It places a higher burden on the government and in particular on me as the responsible minister. I am happy to accept that and happy also to make sure that there is no uncertainty in relation to past decisions made by the previous government. It would be a singular act of inappropriate behaviour were they not to honour the steps which were agreed and which were progressed in good faith. I will wait for the opposition to honour that which they had indicated they were going to pursue.

As I just indicated—as the shadow minister enters the chamber—we will, in good faith, put in place a sunset clause of 31 December—no tricks, no games. Therefore, all decisions made by the previous government will be closed and covered and protected against a technical deficiency. On our watch, in our time, on our responsibility we are not seeking that protection for all decisions after 31 December. I think that it is very important to understand that we are setting for ourselves a higher standard than that which we are now putting in place for decisions of the previous administration.

The second part of this bill is in relation to the turtles and dugongs amendments. These amendments implement our election commitment to triple the financial penalties for poaching and illegal transportation of turtle and dugong meat as announced in the dugong and turtle protection plan. The bill amends the EPBC Act and the Marine Park Act to increase criminal and civil financial penalties for killing, injuring, taking, trading, keeping or moving a turtle or a dugong in the Commonwealth marine area and for taking or injuring turtles and dugongs within the Great Barrier Reef Marine Park. The increased penalties will deter people from committing offences or breaching civil penalty provisions under the act.

I would also note that we will not be accepting the second reading amendment proposed by the opposition for the very reasons I have set out. In good faith, we have offered through the consideration in detail process substantive amendments which will achieve their concerns whilst protecting their decisions. I believe that that is more than the government needed to have done but it is done so there is no delay in this process.

The Greens have indicated that they will be making amendments. We will not be accepting those amendments because that would effectively forestall and destroy the one-stop-shop process. We are in the process of lifting standards around the country. States are coming to us, not going in the other direction. So we are lifting standards. This would hurt standards in the states. It would create unnecessary delay. It would create duplication. And it would fail to help the environment in any way. So I respectfully say to the Leader of the Greens in this House that we will not be accepting those amendments.

Having said that, I commend the bill to the House. I commend it in its original form and I will let the House continue its work.

Photo of Ross VastaRoss Vasta (Bonner, Liberal Party) Share this | | Hansard source

The immediate question is that the amendment be agreed to. There being more than one voice calling for a division, in accordance with standing order 133 the division is deferred until 8 pm.

Debate adjourned.