Tuesday, 8 August 2006
Matters of Urgency
That, in the opinion of the Senate, the following is a matter of urgency:The failure of the Minister for the Environment and Heritage (Senator Ian Campbell) to follow due process in assessing the environmental impact of the Bald Hills wind farm in Victoria, thereby undermining the legitimacy of national environmental approval processes.
I move this motion because it is quite apparent that the Federal Court’s consent orders to set aside the minister’s veto of the $220 million Bald Hills project display the depths of the minister’s chicanery and dissembling. It was always a questionable decision, but it was quite apparent, as a result of that court decision, that the minister’s already confirmed track record of misusing his office has now been reinforced by way of judicial decision. The judicial decision was that the minister’s decision be set aside and that he reconsider the assessment of that project according to law. There was a clear and unarguable premise. It said the existing decision was inconsistent with the law. The humiliating backdown—that this minister had to consent to these orders—was based on the fact that he had corroded the evaluation and approval processes which are designed to protect our environment from absolute damage. This is a scandal that has been brewing for two years. It highlights the fact that, despite the minister’s taking 450 days to come up with a decision that he has now had to abandon, it was a decision made only after court action had been taken by Wind Power. They said that he had avoided his responsibilities to respond to their application within the 30-day procedural program.
This decision took place in the lead-up to the 2004 election. The minister saw an opportunity to use his ministerial powers to give the Liberal Party an advantage in the marginal Victorian electorate of McMillan. I say this to the minister, and he is here in the chamber today: to his credit, he has always been up-front about that. A local newspaper, the Great Southern Star from Leongatha, provided us with the detail. It quotes the Liberal candidate as saying on 12 October 2004: ‘When Ian Campbell arrived, the whole complexion of the campaign changed for me. Senator Campbell gave a commitment to do everything within his power under the EPBC Act to veto the Bald Hills project.’ Clearly the minister has made a decision based on a prejudicial assumption of the scientific analysis required by the EPBC Act, which he had undertaken. Despite his lengthy efforts to find a scientist to support his claims, he has ignored it. Equally, he publicly announced his decision before any approval process was completed and advice provided. He was not making a ministerial decision based on environmental standards; he was making a political decision based on political imperatives, where the endangered species he was seeking to protect was a targeted marginal seat in Victoria.
It is now abundantly clear what has occurred, so I will not rehearse all the arguments on this shabby and sordid process. I will concentrate on the fallout that arises from the minister’s remarkable backflip to the Federal Court. Justice Weinberg’s order of 4 August was a short one, and one sentence sums up Senator Campbell’s embarrassing retreat: ‘The court orders by consent that the decisions of the respondent, the minister, dated 3 April, be set aside.’ He then instructed that he reconsider the proposal ‘according to law’. You have to make a presumption there: if it was not made according to law, on what basis was the decision made on 3 April? The entire fabric of the minister’s arguments relating to Bald Hills wind farm has collapsed as a result of his decision to agree to those orders. He has to publicly admit that the decision on the Bald Hills wind farm was flawed from the beginning. I ask a simple question: how long will it take before the Prime Minister takes action to defend due process of law? How long can this minister stay in his job? I bet the Prime Minister is now saying, ‘I was right to hold off on his promotion.’ Why he stayed a parliamentary secretary for so many years has now been confirmed. The Prime Minister was wrong to appoint him to this job. There has been a dereliction of duty, and he ought to either resign now or be sacked.
The theatre surrounding this decision was played out in a whole series of public arenas. What happened at the recent Senate estimates is one example. It is worth while revisiting what occurred at Senate estimates, because it sheds light on the actions of this minister. The minister put in a particularly hairy-chested performance on 25 May. He interrupted public servants, he insulted members of the committee, he did one of his temper tantrum routines, he shouted, he bellowed and he sought to deflect questioning away from issues about the probity of his own decisions. It was a demeaning performance—a performance so demeaning that members of the government made it clear to me that they were appalled at his behaviour. We saw the minister bobbing up and down like a jack-in-the-box with his nose growing ever longer after his attempts to evade and dissemble concerning his actions. It was a clear case of the politics of the absurd—the theatre of the absurd.
We had continual interference, not just in the usual manner in which he sought to prevent officers of the department from answering legitimate questions but in dissembling to the committee about the way in which decisions had been made within this government. He told the committee:
We put every single document on the table and every single bit of information.
That, of course, was a very fine sentiment; the trouble is it just was not true. He did not provide all the relevant information. He failed to mention that he had been advised by his own department that the grounds to reject the Bald Hills wind farm did not exist, but he went ahead anyway. Similarly, he forgot to mention the formal recommendation that he received on 10 March this year from a first assistant secretary of the department, a Mr Gerard Early, that he approve the wind farm. Far from being open and transparent with the Senate, as he claimed, he was in fact concealing the very information that gave the lie to his decisions.
The truth of the matter is that the minister committed himself to banning this wind farm way back in 2004 during the federal election. He made a political promise, and now his humiliation is that that political promise has been exposed for the lie that it was. He could not press ahead. He could not twist the approvals process to suit his purpose. The courts of this country know it, and it has been demonstrated before them that his actions were not in accordance with the law. The extent of his desperation to block this wind farm can be measured by the length of time he took to try to find a scientific opinion to defend his actions—450 days. In the end he could not do so. He was required to act within 30 days; he failed to do so. It took him 450 days, and in the end Wind Power, the proponents, forced his hand by taking legal action forcing him to act.
He desperately sought scientific opinions to justify his action. He said here today that the Biosis report did not refer to one parrot dying every 1,000 years. We found before the Senate estimates committee that Ashley Stephens from the department of the environment in Victoria wrote to the senior zoologist who wrote the Biosis report, Mr Ian Smales, in an email on 7 April 2006. The correspondence from the senior zoologist to him on the same day said:
To find the number of birds that might be killed at any one wind farm such as Bald Hills, was not the intent of our work and thus the scenario for a particular site–although it contributes to the cumulative impact assessment–is simply a scenario for the purposes of modelling.
Ashley Stephens wrote back to Mr Smales and asked this simple question in regard to his reading of the report:
For Bald Hills, if I multiply (1 - 0.9999392 from table 4 by the number 15 from table 3, I get 0.000912. this means about one mortality every 1,000 years. Is that right?
The senior zoologist from the Biosis report—this is the scientific advice the minister is relying upon—said in an email on 13 April at 10.20 am back to a senior officer from the department of the environment in Victoria:
Yes you’ve calculated correctly.
These are documents that I have tabled. I seek now to refer once again to those documents and to two particular tables that appear in the Biosis report on page 27 and page 30. They make it perfectly clear what those reports are saying. The minister cannot even read the hand-picked scientific advice which he sought to use to justify his politically motivated decision to ban a $220 million wind farm on the presumption that there would be one death every 1,000 years. That is what the report says.
The survey undertaken showed that there were 10,441 birds and 81 separate species sighted in the 12-month survey period, but not one orange-bellied parrot. The potential habitat was 20 kilometres away. Furthermore, the only sighting of an orange-bellied parrot was 40 kilometres away. That is what the department drew to the minister’s attention. The minister was told by his own department that the Bald Hills decision that he was going to take would in fact undermine the approval process for development in western Tasmania, Victoria, south-west New South Wales and of course south-east South Australia.
This minister prostituted his statutory obligations to seek political advantage in the last federal election campaign in the marginal seat of McMillan. He has sought to protect not an endangered species of fauna but an endangered Liberal mate in the marginal seat of McMillan. The minister has effectively convinced no-one that his decision was based on any science other than political science. The only science this minister is interested in is the numbers in this parliament. It is unfortunate for him that no-one was persuaded—not in the government, not in the bureaucracy and not in the Federal Court.
This minister should either resign or be sacked. What you have is that his decision has been set aside by the court and he has had to agree to it. He has had to agree that he will reconsider his own decision on the basis that he acts in accordance with the law, which he patently has failed to do up until this point. His own flawed logic has seen his decision in regard to a $220 million project squashed. We have seen the wilful misuse of the environmental modelling that was commissioned by him in a desperate bid to try to find a scientific fig leaf for the politically motivated decisions that he had already announced he was going to make. (Time expired)