Lyn Allison (Victoria, Australian Democrats) Share this | Hansard source

I was chair of the environment committee and the Democrats spokesperson on the environment at the time the 1998-99 legislation was set up, in conjunction with the states through the COAG process. The current system of federal powers over approval of major projects that posed a threat to environmental sites and species and ecosystems of national significance was established. I should say that this legislation arose partly from a Senate environment committee examination of federal environment laws back in 1997, I think, when it was first initiated by my former colleague Senator Meg Lees. I chaired that inquiry as well.

The ALP and the Greens opposed the legislation at the time and this placed the Democrats in a balance of power—our preferred position always—a responsibility that we took very seriously. The bill was put to one of the most extensive Senate inquiries over the last decade. We conducted hearings in most states. We received hundreds of submissions. It was a very thorough examination of the proposed legislation. It was contentious. Conservation groups were divided on its merits. The Humane Society, the Worldwide Fund for Nature and many of the conservation trusts were supportive. The ACF, the Wilderness Society and a couple of others were strongly opposed to it.

The process was, however, very useful in the development of hundreds of amendments to improve the bill. Whilst the government has shown only modest interest, if I can put it that way, in implementing its own environment laws, it is fair to say that the EPBC Act is now widely regarded as a powerful piece of legislation that has been used extensively by groups and individuals, including, I note, Senator Brown. The process for scrutinising the bill is in stark contrast, however, to what has happened with this enormous 409-page amendment bill. Many of the changes are technical and minor but others very significantly water down the legislation.

It is not surprising that the government would want to do this. In fact, I am astounded that it has taken as long as it has. The government has had the numbers in the Senate since July to pass whatever changes it wanted, to undo all of the amendments negotiated by the Democrats, if it chose to do that—and some here are certainly in that category. But to give people two weeks to make a submission to the all too commonly short inquiry is, frankly, outrageous. It is a slap in the face too to the hardworking conservation groups that have acted in good faith to make the laws work to protect the environment. That is one of the most disappointing parts of what we are dealing with today. Despite that, the submissions we have received have been very good and very useful.

But it is also a slap in the face to state governments, who were part of the process in the first instance. The Victorian state government say—quite politely, I thought—in their submission that there was no consultation at all with them. They say that they welcomed the so-called streamlining but pointed out that the new fast-track refusal mechanism appears to create new administrative complexity. They say the same about reconsideration of decisions at the referral stage, which they say creates a new degree of uncertainty as to the status of the minister’s decision at this early stage of the process. They point out that section 131AA adds a new process which seeks to oust the proponent’s usual rights to natural justice. They say that the bill would increase the EPBC Act in size and in administrative complexity. They say that they have great concerns about the potential for greater uncertainty, a greater administrative burden and increased duplication in process—so much for this legislation being all about streamlining.

I repeat that there has been no consultation and a ridiculously short time frame, and yet this is largely an administrative and technical bill and not urgent. It is a watering down of hard won gains for the environment. I thought I would draw on the HSI, TCT, and WWF submissions for a quick overview of those changes, because it is important to get them on the record. They all make the point that it would have been more appropriate to have had a public process to fully analyse and consider the different models in terms of an overhaul of threatened species and heritage public nominations processes and invite community input—for example, with a discussion paper. I seem to recall that there was an extensive discussion paper that kicked off this legislation back in 1998. Instead, the community has been presented with a truncated process that seeks to bulldoze the bill through without proper scrutiny and analysis. Unfortunately, we have become accustomed to that kind of process in this place.

On the removal of the merits review, they say that greatly reducing the ministerial decisions that can be challenged by third parties is a backward step. On the removal of the matters of national environmental significance triggers, that five-year review that is in the law at the present time is useful and the government has advanced no reason for removing it. Regarding the constraints placed on the threatened species public nomination and listing process, these conservation groups say that it will potentially wipe 550 threatened ecological communities from the current waiting list for protection under the EPBC Act, amounting to millions of hectares of endangered habitat across the country.

The say that it will make it harder for the public to secure legal protection for threatened species and ecological communities with a new requirement for public nominations to comply with the themes set by the minister or risk having their nominations left off lists for consideration. It will give the minister arbitrary discretion to remove a publicly nominated species or ecological community from the annual list of species to be assessed for listing. Currently, the minister gives his scientific committee repeated extensions to postpone consideration of politically controversial nominations, such as commercial marine fish and ecological communities occurring on private farmland. A new amendment will allow him to remove controversial nominations from the committee’s consideration altogether. It will allow the minister to refuse to assess a threatened species previously rejected for protection, even if its conservation status has worsened and it will also open the process to abuse for controversial species.

On conservation advice and recovery plans, the amendments remove the mandatory requirement to develop a recovery plan once a threatened species or ecological community is listed under the law as threatened. On critical habitat, the amendments remove the mandatory requirement to identify critical habitat for threatened species in any recovery plans that are developed. On heritage nominations and the listing process, they say that this is a major backward step that gives the minister unprecedented discretion over the listing process by constraining public nominations into themes rather than considering the heritage status of the place being nominated. The minister will also have the power to omit politically controversial places from the priority assessment list provided by the Australian Heritage Council prior to the list being available for public comment.

On third-party enforcement, the removal of the provision preventing the Federal Court from requiring undertakings for damages as a condition of granting an interim injunction creates a significant new barrier to third-party enforcement through the courts. Third parties, as they point out, have used the courts very judiciously so far and the government has provided no evidence whatsoever to substantiate the need to repeal section 478. On strategic assessments, they say that while cumulative impact assessment is desirable in principle, the ANEDO submission raises numerous issues that need to be addressed in the amendments to ensure proper consideration of matters of national environmental significance, particularly those that are poorly delineated, such as critical habited for threatened species. All submissions complain about the lack of a new matter of national environmental significance trigger and point out the amendments are a missed opportunity to introduce triggers for broadscale land clearing, greenhouse emissions, unsustainable water use and large dams.

What I thought was interesting in the submissions that were received was the number of complaints about the existing system. The ACF point out that very few resources have been made available for the implementation of this legislation. They say:

The inadequacy of resources available to implement the major provisions of the EPBC Act is evident on a review of the DEH’s Operation of the EPBC Act 2005-06. According to that report, there is a backlog of 640 threatened ecological communities requiring assessment. While the Department received 9 new nominations that year and was considering a total of 33, the Minister made only 5 decisions. The situation is not much more encouraging with respect to threatened species. The Explanatory Memorandum refers to some 250 threatened species recovery plans having been adopted under the Act, but many of these have not been reviewed and are years out of date. In 2004-05, there were scheduled reviews of some 20 threatened species recovery plans, not a single one of which was completed according to the statutory schedule. One reason cited for these delays was the ‘volume of recovery plans becoming due for review’, according to the review of the operation of the EPBC Act for that year. Five out of the six reviews of key threatening process abatement plans were also not completed.

To go on, in the ACF submission, they point out:

A dedicated EPBC enforcement unit within the Department of Environment and Heritage did not even come into operation until 2004, and resources remain modest.

The environmental assessment budget for 2006-07 is $13.8 million—a $1.3m decrease from the previous year, with a further $1.6m to be stripped from the budget for 2007-08. This amount has to cover not only the assessment of 300-500 project referrals every year, but also appears to include all monitoring and enforcement actions under Chapter 4 of the Act, as well as post-referral and post-approval monitoring of compliance with conditions.

The Australian government will thus spend less money in 2006-07 in assessing and monitoring activities that could impact matters of national environmental significance than it will on helping people take their cars across Bass Strait ($36 million), managing asylum seekers offshore ($68 million), or subsidising the consumption of draught beer ($170 million).

This is to point out how little this government really gives by way of priority to the environment.

Another submission on this bill that I think is worth quoting here is from Birds Australia. They say:

It appears that the listing process is becoming more subjective, controlled by decisions by the Commonwealth Minister rather than a clear, transparent, and scientifically based process.

They give an example of this:

... the proposed Section 194 provides for the Minister to create and consider conservation themes to guide the selection process for listing threatened species and ecological communities. There is no clear process for the rationale for these themes and public, or other government, participation in the establishment of these themes.

The status of current waiting lists for threatened ecological communities and species appear to potentially be in jeopardy. It is not clear whether they will be eliminated and a new listing process will start over. This is a serious matter as there are threatened ecological communities and species which are in urgent need of attention. The Minister should not be given the discretion to remove species or ecological communities from the annual assessment lists.

The Minister is given the power to refuse to assess a threatened species which had been rejected for protection in the past. The status of many species and ecological communities may change rapidly because of emergent or intensifying threatening processes. As long as there is a strong scientific basis for reassessment, the Minister should not be able to refuse such an assessment.

Birds Australia do say that there is a positive in this. They point to:

... provisions for industry to contribute funds to and/or actually carry out activities for research and establishment of conservation areas as part of recovery plans for species threatened by a project—

which they describe as an excellent move. However, they go on to say that what is of concern to them is:

... the apparent removal of mandatory requirements to develop recovery plans for newly listed threatened species and ecological communities and the mandatory requirement to identify critical habitats for threatened species in any Recovery Plans that are developed.

They go on to point out the importance of recovery plans for:

... successful outcomes of the EPBC Act and associated State and Local Government Acts and Regulations which promote ecological sustainability.

They are very active, as we all know, in assisting the development of recovery plans. Their members are also very active in carrying out aspects of those recovery plans in the field.

That is just a snapshot of what was able to be prepared by conservation groups for this legislation. I do not see amongst the submissions that were made too much support at all for this government’s approach. It is supposed to be streamlining; it is supposed to be improving the bill. But, as I said, those streamlining measures—the administrative and technical measures that are in the bill—are not urgent, so there would have been time for us to properly consider this legislation. It is a very significant watering down of an agreement that was struck back in 1999 on this legislation. It is typical of the government not to approach the Democrats. The Democrats negotiated in good faith, I might say, Minister Campbell. It was a long negotiating process but it was a thorough one.