Senate debates

Tuesday, 8 August 2006

Matters of Urgency

Wind Farms

Photo of John HoggJohn Hogg (Queensland, Deputy-President) Share this | | Hansard source

I inform the Senate that the President has received the following letter, dated 8 August 2006, from Senator Carr:

Dear Mr President,

Pursuant to standing order 75, I give notice that today I propose to move:

“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.”

Yours sincerely

Senator Kim Carr

Is the proposal supported?

More than the number of senators required by the standing orders having risen in their places—

I understand that informal arrangements have been made to allocate specific times to each of the speakers in today’s debate. With the concurrence of the Senate, I shall ask the clerks to set the clock accordingly.

3:53 pm

Photo of Kim CarrKim Carr (Victoria, Australian Labor Party, Shadow Minister for Housing and Urban Development) Share this | | Hansard source

I move:

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)

4:08 pm

Photo of Ian CampbellIan Campbell (WA, Liberal Party, Minister for the Environment and Heritage) Share this | | Hansard source

Mr Acting Deputy President, you can always tell when Senator Carr’s arguments are either spurious or based on irrelevancies because the volume always increases massively. You could tell that by the end of that little 15-minute spray Senator Carr was going hoarse. That, if you need to measure the depth or quality of his arguments, is the ultimate test. When he is hoarse at the end of 15 minutes you know that the arguments are so hollow that he is either misleading you about it or seeking to exaggerate. The voice gets louder and louder and ultimately he ends up hoarse.

In the time available to me I will make a couple of points. I am pleased to see on the list that Senator Brandis and Senator Scullion will be supporting the government’s case in relation to the motion that Senator Carr has moved. I am sure that Senator Brandis will address some of the legal issues. Senator Carr, in his normal way, has moved a motion against a minister and then wandered out of the chamber in his arrogant style, not prepared to listen to the argument. I think Senator Kemp actually put that to us earlier. He said that Senator Carr will always attack you if you are not in the chamber. Now he moves an attack, says that I should not have this job, and then wanders out of this chamber.

Photo of Joe LudwigJoe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | | Hansard source

It’s so he doesn’t stay here and interject and spoil your speech.

Photo of Ian CampbellIan Campbell (WA, Liberal Party, Minister for the Environment and Heritage) Share this | | Hansard source

It is probably a good thing, Senator Ludwig, but it does show a great contempt for the Senate when someone effectively moves a motion attacking a minister, yells and screams for 15 minutes, deceives the Senate and then skulks out of the chamber because he does not want to be corrected.

Mr Acting Deputy President, can I firstly make the point that, as Senator Ludwig will know because he has actually had legal training, when you have a consent order from a court it is in fact an agreement. It was an agreement between the proponent, Wind Power Pty Ltd, and me that we would go to the court and suggest a process. It was fully agreed; there was no disagreement with the proponent. We would go to the court and say, ‘Right, this is a good way forward.’

The only attack that you could possibly make on the process is that Wind Power, the proponents, did not have access to the cumulative impact report. The only reason they did not have access to it is that they informed us that they wanted to take legal action to force me to make a decision. So instead of coming to us and saying, ‘Can we have a look at the report?’ they came to us and said, ‘Please make a decision.’ We made a decision. I think it is entirely appropriate that they have access to the report so they have had access to it since April. They have had a lot of access to it. They have said, and I have agreed, that we will look at another submission on this proposal. I think it is an incredibly sensible way to go forward.

Senator Carr also said that the orange-bellied parrot had not been sighted at this particular location and that it did not even fly through it. ‘It has never been spotted’ I think were the words he used. The best thing that Senator Carr could do for this whole process is to get it out in the open. We have put all of the documents out there for the public to see. Senator Carr talked about the cumulative impact study, and that is a study of the impact on migratory species across that whole coastline. You would know from your own state, Mr Acting Deputy President, that these wind turbines do have significant impacts on birds. You have lost three endangered wedge-tailed eagles in Tasmania in the last three months.

We know that the Victorian Labor comrades of Senator Carr have played fast and loose with the truth on this issue, and they have hidden from the people of Victoria and from the people of Australia the information that puts the lie to what Senator Carr said in the Senate today. When the proposal came to my department the Victorian government sent up this huge wad of material in relation to the proposal. What they did not send up was this document which Mr Hulls still keeps secret from the Australian people. Senator Carr should read it. In fact, I will not even bother him with that effort because I know he struggles when it comes to effort, except when it comes to bellowing air through his lungs and vocal chords and making himself hoarse.

But what did the report say to Mr Hulls? His own department, the Department of Sustainability and Environment of Victoria, says under the heading ‘orange-bellied parrot’:

The Bald Hills wind farm proposal will increase the level of threat to the orange-bellied parrot.

It was not in any of their documents. That stack is what they sent to Canberra. I would have loved to have been the courier who got the contract for that. This document was missing, though. We know why now: because Senator Carr and his comrades in Victoria wanted to cover it up and hide it from the people of Victoria. What does it go on to say?

The department agrees that the orange-bellied parrot is unlikely to utilise the site. However—

this is the bird that does not go anywhere near the site, does not go through the site—that is what Senator Carr said to the Senate—

it is highly likely that the orange-bellied parrots commuting between habitat patches in South Gippsland will fly across the site. Their commuting flights are often at heights encompassed by the rotor swept area.

That will be news to Senator Allison who, without any ill will, said in Senate estimates that these birds do not fly at those heights.

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

Senator Allison interjecting

Photo of Ian CampbellIan Campbell (WA, Liberal Party, Minister for the Environment and Heritage) Share this | | Hansard source

This is a submission made by Minister Hulls’s own department saying that the birds would in fact fly through the site and would go through the rotor-swept areas. Senator Allison interjects: ‘These birds are sensible; they know how to avoid them.’ There are three dead wedge-tailed eagles lying on the ground in northern Tasmania now, and here is a species with 50 breeding pairs left on the planet. It is worth making the point that if they were 50 blue whales and you stuck a rotor in their path there would be people marching in the streets. It is all right to have a bit of fun with a parrot. It does not really matter if it is an endangered parrot or an endangered eagle. These people who pretend they care about the environment say, ‘Let’s forget it.’

The report goes on to say:

A conservative approach is therefore required—

a conservative approach—

which acknowledges that this proposed development will increase the cumulative risk to the species posed by the wind farm industry. As for other wind farms in Victoria that place this species at increased risk of extinction, the proponent should investigate compensatory habitat management activities off site.

This is a very serious issue. It is one that the Victorian government’s own people recognise. It is one that the minister in Victoria has used to stop wind farms himself. He stopped one at Port Fairy only recently because of the impact on migratory birds. He pretends that for him to stop a wind farm because of one migratory bird is okay but for me to stop one because of another bird is not okay. It is gross hypocrisy, compounded by Senator Carr’s misleading of this chamber. (Time expired)

4:16 pm

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

I join this debate on the urgency motion about Senator Ian Campbell and the process he used in assessing the environmental impact of the Bald Hills wind farm in Victoria. Since the Environment Protection and Biodiversity Conservation Act was established on 16 July 2000, 2,745 proposals have been referred to the minister—not this minister but the ministers before him. But only four applications—that is, less than 0.015 per cent—have ever been rejected.

A significant number of the 2,745 projects involved threatened species. But it is painfully clear to us on this side of the chamber at least that this minister, like those who have gone before him, has been very reluctant indeed to use the EPBC Act to prevent projects from going ahead and has opted instead to utilise the option in the legislation of approving projects with conditions. It came as an enormous surprise to the wind industry and environment groups that the minister overturned the Victorian state decision and knocked back the Bald Hills wind farm. The minister’s decision was made even more surprising when it was revealed last week that he had ignored departmental advice to allow that wind farm to proceed.

A government report entitled Wind farm collision risk for birds: cumulative risks for threatened and migratory species stated that wind farms, not specifically the Bald Hills wind farm, are not likely to have a major impact on the species in question—that is, the orange-bellied parrot, the Tasmanian wedge-tailed eagle, the swift parrot and the white-bellied sea eagle. Specifically on the orange-bellied parrot, the report says:

The current and proposed levels of wind farms within its habitat do not significantly affect the chance of survival ...

                 …         …         …

... the species has a very high probability of going extinct within 50 years in the absence of any mortality due to wind turbine collisions.

                 …         …         …

... such action—

preventing wind turbines, that is—

will have extremely limited beneficial value to conservation of the parrot without addressing very much greater adverse effects that are currently operating ...

Those threats include the fragmentation and degradation of overwinter habitat by grazing, agriculture and urban development; competition with other seed-eating birds; foxes and feral cats; disease; and disorientation during migration caused by brightly lit fishing boats. Ironically, the orange-bellied parrot is also on the list of birds threatened because of climate change.

The Bald Hills wind farm would significantly reduce greenhouse emissions—some 435,000 tonnes a year. There are far greater threats to the orange-bellied parrot than turbines, including global warming. A better outcome for the orange-bellied parrot, the Democrats say, would have been to approve the project with conditions. These could have included that the wind farm be required to minimise impact on habitat and that a percentage of the revenue from the wind farm or a specified dollar amount be put into creating more winter feeding habitats—which is a big problem for the bird—and securing current habitats. The CEO of the proposal is quoted as saying:

We’d be more than happy to do whatever we could to make sure we didn’t have a negative impact on these parrots.

As we have already heard today, the minister has conveniently used the EPBC Act to fulfil his pledge during the 2004 federal election campaign to stop the project, which is now located in the Liberal seat of McMillan. It is not hard to be cynical when we have the Treasurer and Prime Minister in waiting, Peter Costello, defending Senator Ian Campbell’s decision by saying that wind farms ‘look ugly’. Federal agriculture minister Peter McGauran argued that wind power is a fraud and would devalue farming land. The minister even said that the information about wind farms on the AGO’s website should be removed.

Given that only 0.015 per cent of applications have been knocked back by the minister since 2000, given that the department advised the minister to allow the wind farm to go ahead and given that the minister could easily have approved the project, like so many others, with conditions that would have been a win for the parrot, we can only conclude that the minister has set out to undermine the legitimacy of the Environment Protection and Biodiversity Conservation Act. (Time expired)

4:21 pm

Photo of Kerry O'BrienKerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Transport) Share this | | Hansard source

We are debating today a motion which reflects on the shameful behaviour of this minister, based purely on the politics of a marginal seat, in exercising his powers as a minister of the Crown under an act of this parliament. This is the minister who, through his Liberal Party candidate for McMillan, promised a small group of wind farm opponents that a vote for the Liberals in the last election would result in the wind farm being blocked. That is the reality. That is on the public record. This was a matter which involved a political promise by the candidate and this was a minister who was involved in delivering on that promise, come what may.

The minister spent 450 days casting around for an excuse, any excuse, to set aside this project—any vague or flimsy reason that he could come up with to deliver on a promise made to a small number of constituents in the seat of McMillan. All the advice from his own department told him that he had no grounds to block the proposal. This was reported in an article in the Age quite recently. The article talks about a briefing paper which was delivered to Senator Ian Campbell, dated 20 March this year, from the Department of the Environment and Heritage, signed off by first assistant secretary Gerard Early—so it was at a very high level in the department. The paper recommended that the wind farm be approved with standard conditions to minimise risks to endangered birds. In other words, it recommended the sorts of conditions which were imposed on other wind farms approved by this government and, indeed, by this very minister.

Mr Early advised the minister that more drastic measures, such as vetoing the development, would be inconsistent with previous government decisions and ‘would have ramifications for all coastal development in western Tasmania—your state, Mr Acting Deputy President Barnett—in Victoria, in southern New South Wales and in south-eastern South Australia’. I will touch on those very serious ramifications in this contribution. This minister knew better than very senior officers in his department, and he rejected their very sensible advice. He had commissioned advice from Biosis, and from Biosis he got something that he thought approached what he wanted. He jumped on it, without much thought, it would appear, because the rest is history. Windpower took the matter to the Federal Court, as you would expect in these very shabby circumstances, and the minister’s house of cards collapsed.

The minister continued his inane commentary on the matter, in opposition to the court case, and, when his own department’s advice was revealed, what did he say? The Age quotes him as saying:

I get advice from my department on all issues on a daily basis, I don’t always accept it. The bottom line is, if you want a ‘Yes Minister’ in action I’m the wrong guy to be your minister … It was a very good decision, I stand by it and I’d make it again tomorrow.

That reminded me not of Yes, Minister but Michael Palin of Monty Python fame. Who could forget that famous and very relevant sketch where John Cleese complained about a dead parrot. What did Michael Palin say: ‘Norwegian Blue—beautiful plumage!’ That is akin to this mantra about the orange-bellied parrot, which frankly was not endangered at all.

Photo of Ian CampbellIan Campbell (WA, Liberal Party, Minister for the Environment and Heritage) Share this | | Hansard source

Senator Ian Campbell interjecting

Photo of Kerry O'BrienKerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Transport) Share this | | Hansard source

Senator Faulkner earlier talked about this sort of puerile behaviour—this infantile behaviour by this minister. We are seeing another example of it today; he cannot contain himself. He was heard by me in silence, but of course he is not prepared to do that when he is being shown up in public. He is prepared to engage in this kind of theatrics. Senator Ian Campbell continued with his version of the dead parrot sketch for about another week, and then he had to capitulate. And that capitulation was very public. The capitulation is to settle the case on terms which the applicant says were ‘the most we could have received from this application’, and that is: forcing the minister to say that he would actually consider the application according to law. What a concession to make! He makes the concession that, on this occasion, he will consider the application in accordance with the law. At the same time, he will commit the Commonwealth, the taxpayer, to paying the legal costs of the applicant—costs which have been incurred because of the improper actions of this minister in consistently pursuing a political objective rather than the objective which is laid down in the legislation, which is a proper environmental approach to the problem.

I asked the minister a question in question time, and he assiduously avoided answering it, because it is true that wind farms have been approved by this minister even though they pose a greater risk to the orange-bellied parrot than Bald Hills would. There is nothing worse for a minister than to be exposed on arrogant inconsistency in the pursuit of so-called ministerial duties. The minister has been exposed on the basis that there was a political objective which had to be achieved, and the minister cast around and found the flimsiest of excuses to give effect to it.

It is, of course, true—and again the minister would not own up to this fact—that the very report he relied upon noted that it had intentionally overestimated the risks posed by wind farms and therefore overstated the likelihood of collisions. Did the minister tell that to the public when he made his announcements about the orange-bellied parrot? Of course not. He wanted the public to believe that he was the minister in shining armour defending the orange-bellied parrot from a risk which, frankly—as Senator Carr has demonstrated—would arise once in a thousand years—

Photo of Ian CampbellIan Campbell (WA, Liberal Party, Minister for the Environment and Heritage) Share this | | Hansard source

That is simply not true and Senator Carr knows it.

Photo of Kerry O'BrienKerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Transport) Share this | | Hansard source

It is absolutely true, and Senator Carr has documented the information—

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party) Share this | | Hansard source

Senator Brandis interjecting

Photo of Kerry O'BrienKerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Transport) Share this | | Hansard source

Senator Brandis, you will get your chance in a minute, if you can hold your tongue for a second or two. If I had some protection from the chair, it would be helpful.

Photo of Guy BarnettGuy Barnett (Tasmania, Liberal Party) Share this | | Hansard source

Order! Senator O’Brien has the call.

Photo of Kerry O'BrienKerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Transport) Share this | | Hansard source

What we have seen is not something that is funny. We could think that it is funny.

Photo of Ian CampbellIan Campbell (WA, Liberal Party, Minister for the Environment and Heritage) Share this | | Hansard source

You were just quoting Monty Python, you goose.

Photo of Kerry O'BrienKerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Transport) Share this | | Hansard source

That is right. I was quoting something because the minister has been pilloried in the press. I must say I was greatly amused by the cartoon in Saturday’s Australian. It has the minister walking out on a gangplank.

Photo of Ian CampbellIan Campbell (WA, Liberal Party, Minister for the Environment and Heritage) Share this | | Hansard source

I thought it was quite clever too.

Photo of Kerry O'BrienKerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Transport) Share this | | Hansard source

It is a very clever cartoon. I hope you get a copy for your office, Minister. It will be your parting gift from this portfolio, I suspect. The serious part about this is why applicants would want to bring a matter before this minister when he has demonstrated that he is not capable of properly applying the law. He will apply what he considers is to the political advantage of his party. Why would applicants who want to build this country’s infrastructure, infrastructure that this country needs, go to this minister when he has demonstrated that he will be so inconsistent and that he will not give a fair hearing to applicants, as demonstrated by the different treatment that he has given to wind farms in this portfolio? And it is not just him; it is his whole government. He has departed from a consistent approach, the consistent approach that was recommended by his own department—the advice that he has said that he had rejected. This minister shows developers that they cannot rely on him. This is the minister who now cannot have any credibility in making any decision on this matter. He cannot have any credibility on this matter when it comes back before him and he cannot have any credibility on any other project. (Time expired)

4:31 pm

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party) Share this | | Hansard source

On Sunday, 7 December 2003, Mr Mark Latham was sitting at home in Sydney. Mr Latham had five days earlier been elected to the leadership of the Australian Labor Party. He wrote a long, reflective essay to himself about the challenges he faced as the leader of the Australian Labor Party and how he was going to get it into shape to face a federal election in the ensuing year. He wrote down a list—you can read it on page 254 of his published diaries—of the challenges facing the Australian Labor Party that he had to address. One thing he put on his list was this: ‘We have got to get some decent senators.’ Addressing the trade unions, he says:

... if they want people like me to take unionism seriously, they need to give us better Senators and stop sending their rejects to Canberra.

After that lamentable, embarrassing, ignorant pair of performances by Senator Carr and Senator O’Brien, I cannot help feeling a bit of retrospective sympathy for Mr Mark Latham. What these two gentlemen have demonstrated—and it must be remembered that these two would be ministers in a federal Labor government were the Australian people so injudicious as to elect one—is a lamentable ignorance of elementary legal principles. Neither of them are lawyers. I see my friend Senator Kirk over there, who is a very good lawyer—and, therefore, about to be booted out of the caucus by the Labor Party. She would not need to have this explained to her, but they do, so let us take it simply.

First of all, much is made by Senator Carr and Senator O’Brien of the terms of a consent order in the Federal Court last Friday. It is a consent order which resolved by agreement litigation between Bald Hills Wind Farm Pty Ltd and the Commonwealth. Much is made of the use in the consent order of the language ‘that the matter be remitted to the respondent for reconsideration according to law.’ Senator Carr and Senator O’Brien seem to be unaware of the fact that that is a totally formulaic expression. In any consent order that disposes of litigation on an agreed basis, those words will appear in a case of this kind. It is utterly formulaic and has absolutely nothing to do with the determination on the merits. There was no determination on the merits in the consent order last Friday, contrary to what Senator Carr and Senator O’Brien would have you believe. Perhaps they themselves misunderstand.

This is a very simple case. What has occurred is that a party seeking to develop a wind farm in a particular locality in South Gippsland has made an application and the minister was given certain advice by his department that the application be approved subject to some conditions. The minister chose not to adopt that advice at the time but rather to commission a further survey. I think we have got a glimpse into what a future Labor government would be like with Senator Carr and Senator O’Brien as ministers in it. Not only would no departmental advice ever be called into question, but these ministers—were they ever to become ministers—would think there was something wrong or insidious or corrupt about a minister failing to rubber-stamp departmental advice. So I think we have got a glimpse of what sort of quality of ministers they would be. Nevertheless Senator Ian Campbell, like a good minister should, applied an independent mind to the department’s recommendation. He commissioned a further study by a reputable scientific expert, Biosis.

The particular issue with which Senator Campbell was concerned was not the effect on a given species just of this wind farm but of the cumulative effect on a range of species of the development of a number of wind farms across the coast of southern Gippsland. That is why he commissioned a report, being a minister who was on top of his department, not merely an automaton always following the department’s advice. He commissioned a study into something he was not satisfied the department had sufficiently turned its mind to—that is, the cumulative effect of all of these wind farms on migratory bird species. The report by Biosis came back to the minister. Let me read again, although Senator Campbell has read it once, the relevant conclusion:

Given that the Orange-bellied Parrot is predicted to have an extremely high probability of extinction in its current situation, almost any negative impact on the species could be sufficient to tip the balance against its continued existence. In this context it may be argued that any avoidable deleterious effect—even the very minor predicted impacts of turbine collisions—should be prevented.

In the study that Biosis did, they predicted the death of perhaps one orange-bellied parrot per year by impact with the turbines. That might not sound very many until you realise that this species, which is on the endangered species list, is so scarce and so rare that there are only 50 breeding pairs left in the world.

I am sure that if we changed the species and were talking about somewhat more famous animals, like the great white pandas or the white tigers, and we were told that there were only 50 breeding pairs left in the world and somebody asked the question, ‘Is it an unacceptable level of risk to kill one of the remaining 50 breeding pairs a year?’ most people with an ounce of environmental sensitivity would say: ‘Of course we can’t have that. According to the best scientific modelling and projections, that’s one per cent of all that are left in the world being eliminated every year.’ But because it is the humble orange-bellied parrot and because it lends itself to the asinine parody in which Senator O’Brien sought to engage—this Pythonesque burlesque that he tried and could not even accomplish on a sleepy afternoon in the Australian Senate—it is not treated with respect.

This is a serious environmental issue. There are 50 breeding pairs of this species left in the world. The scientific report says that the chances are you will kill one a year. That is our best estimate. So what does the minister do? He does what he is required to do under section 133 of the Environment Protection and Biodiversity Conservation Act. The act provides certain specific tests that have to be applied to endangered species in considering applications to approve anything that might impinge upon them. In particular, section 18(3) of the act provides that in relation to endangered species:

A person must not take an action that:

(a) has or will have a significant impact on a listed threatened species included in the endangered category; or

(b) is likely to have a significant impact on a listed threatened species included in the endangered category.

I do not think that you would need to be very intelligent to work out that, if you only have 50 breeding pairs of a particular species left in the world and you have a scientific report that tells you that a particular proposal is likely to kill one a year, that is likely to have a significant impact on that endangered species.

Senator Campbell, on the basis of the best science available to him, refused the proposal under section 133(7) of the Environment Protection and Biodiversity Conservation Act, and in doing so adhered to the statutory obligation provided for by section 136(2), which says:

In considering those matters, the Minister must take into account:

                 …         …         …

(e) any other information the Minister has on the relevant impacts of the action.

That includes the Biosis report. The minister did the right thing. Senator Campbell, I hope you are not paying this barrister that you have briefed in the Federal Court proceedings too much, because it is not going to be a very hard case for him to win, to show that you applied the statutory criteria accurately and in accordance with the science.

To top it all off, what we know now that we did not know before, and what Senator Campbell did not know at the time he made this decision on 5 April this year, is that the Victorian government, which had supplied documentation to Senator Campbell on this very topic, had concealed from him one highly relevant fact: a report by its own Department of Sustainability and Environment that reached the same conclusion. (Time expired)

4:41 pm

Photo of Christine MilneChristine Milne (Tasmania, Australian Greens) Share this | | Hansard source

I rise today to say that I believe that Senator Campbell has finally exposed the complete lack of merit in the Environment Protection and Biodiversity Conservation Act 1999. When the government introduced this, the majority of the conservation movement across the country said that it was completely flawed legislation because it relied almost entirely on the discretion of the minister to determine the fate of any development project that was referred to the minister. It was only the WWF, the Humane Society, the Tasmanian Conservation Trust and the Queensland Conservation Council who stood with the federal minister of the day and made wild claims that it was the biggest win for the environment in 25 years.

Several years later, what we have seen is that the EPBC Act stands condemned. The activities of the minister in relation to the orange-bellied parrot demonstrate why, because it depends entirely on the whim of the minister whether he is going to apply the act appropriately or otherwise. That has always been the case. I inform the minister that when Senator Hill was the minister for the environment he ruled out any consideration of cumulative impacts on orange-bellied parrots as a result of wind farms. If you have a look at his decision then, he said that he was not going to look at the cumulative impacts at all.

I have heard a whole lot of hypocrisy from people around this chamber talking about their desperate concern for critically endangered species. When it was determined that the detention centre was to be put on Christmas Island I did not hear the same sort of passionate outcry for the Abbott’s booby. When it was decided to exempt logging of old-growth forests in Tasmania from any consideration with regard to the proposed pulp mill, did I hear an outcry from either the Liberal Party or the Labor Party about the green and gold frog, which was vulnerable under the EPBC Act? What about the wedge-tailed eagle? It is endangered. We have heard a lot about the wedge-tailed eagle. The assessment from Forestry Tasmania says that they will be wiped out in the north-east if the logging continues there for the pulp mill.

What about the swift parrot, the spotted-tailed quoll, the eastern barred bandicoot and other vulnerable species? The swift parrot is endangered. All of those are listed in the documents put out by the pulp mill proponents as being impacted by this pulp mill—and that is without consideration of the forests. And yet I do not hear a whimper from anywhere in this chamber. That, apparently, is okay. At the discretion of the minister, some species can be wiped out. With others, he takes a passionate interest in them, and the passionate interest has got to do with marginal seats in Victoria. Everybody in the country knows that. In Western Australia, they also know that the decision in relation to one particular wind farm proposal was to out-redneck a local sitting member, Wilson Tuckey. We also had the Treasurer saying that he would not want a wind farm in his backyard.

We are facing a global catastrophe with global warming and climate change. We need the desperate roll-out of renewable energy everywhere we can get it, and we need biodiversity protection to be taken seriously and consistently. We do not need ministers grandstanding and making political decisions because they can under a completely flawed act. Under the EPBC Act there have been hundreds, if not thousands, of referrals to federal ministers since it came in, and only two or three have ever been stopped.

Here is a challenge for you, Minister: Ralph’s Bay and the critically endangered spotted handfish. I want you to take the same decision on the spotted handfish as you took on the orange-bellied parrot. People in Ralph’s Bay will be watching to see if you do, because that is one of the last habitats of the spotted handfish. Let us have exactly the same process applied. You will get any number of reports telling you that the spotted handfish is critically endangered. Let us stop the Walker marina development right now on the basis of the spotted handfish. We do not even have a recovery plan funded, Minister. That is the level of concern the Commonwealth has for the spotted handfish.

As I have indicated, the wedge-tailed eagle in the north-east of Tasmania is also endangered, as the native forests go down in order to feed a pulp mill after a decision by the Commonwealth to exempt those forests from any assessment. How can you have an environmental impact assessment of a pulp mill that is going to use millions of tonnes of native forests every year, locked in for 30 years, and say, ‘I’m not going to look at the environmental impact on the forests’? The EPBC Act has been shown to be poor legislation. It should be repealed. What we need out of this orange-bellied parrot fiasco is new legislation which takes away from the minister the discretion that the minister currently has under the act that makes a mockery of environmental protection. (Time expired)

4:46 pm

Photo of Nigel ScullionNigel Scullion (NT, Country Liberal Party) Share this | | Hansard source

I rise to speak on this urgency motion. I must say that, having heard the debate, I think the urgency is not so much about wind farms or indeed parrots but appears to be something to do with the Victorian Labor Party trying to divert attention from something—but we will get to that in a moment. I have to congratulate my well-informed colleague Senator Brandis on the way he has dealt with the issues of due process. I think we have comprehensively debunked any conspiracy theory that the Minister for the Environment and Heritage has somehow stepped outside of the process. I think that theory has been completely debunked.

What has been a consistent theme in the argument from those opposite is that somehow the minister should be accused of this evil of having no consistency. From all the information that is before me, all I can see that the minister has refused to do is be pressured to make a fundamental decision about protecting the environment. He has sought to find that very delicate balance between development and the environment and has said, ‘I am not going to make that decision until I have considered the most recent and most comprehensive information at hand.’

You have to take this job seriously. It has been a fair amount of time since those opposite have perhaps had that opportunity, but I would remind them that they should look very carefully at the actions of this minister. He has a very proud history of delivering consistent decisions. Those decisions have to be made after very carefully balancing development with environmental protection. It is not an easy task. You have to do it very carefully. This government and this minister have demonstrated that they have been able to do that for some time.

I will cite a couple of well-known recovery plans. In the context of, say, a windmill, the Environment Protection and Biodiversity Conservation Act does not simply look at the footprint that the windmill makes on the ground and what plants will no longer exist there because we have stuck a great windmill there but it also looks at the wider implications. In another context, this government has said, ‘You not only need a plan to manage mullet or sharks; you also need to look at the wider impact.’ Of course, that is exactly what this minister is doing. In the case of the dugong recovery plan, this government did not namby-pamby around this area. Yes, there were a lot of people who got their noses out of joint and, yes, there were a lot of developers who said, ‘That’s inappropriate,’ or ‘That’s not right,’ but we put in specific legislation to ensure that there were dugong protected areas. That is consistent with the approach we are taking today.

The turtle recovery plan was, again, absolutely consistent with the decisions that the minister has made. The development of the turtle recovery plan was carried out only after the minister had received the best possible information on turtles, particularly with respect to their interaction with the fishing industry, and how we could enable them to recover. The industry developed turtle excluding devices—devices that are now recognised as some of the best innovations around the world and which are now in bycatch-reducing devices. The industry put in a supplementary submission and came back to the minister and said, ‘Now can we continue?’ They had in fact ameliorated any of the potential damage that may have been caused by their activities.

But if we are looking for a real comparison, we can look at the albatross recovery plan. Mr Acting Deputy President Barnett, coming from Tasmania, you would appreciate this. The albatross is an iconic species. Everybody knows that albatrosses are threatened and endangered. But, in terms of the comparison between the orange-breasted parrot and the albatross, there are thousands of albatrosses and there are no parrots. The parrots are in such perilous circumstances. With the albatrosses, we said, ‘There is simply no acceptable bycatch—none.’ We gave the tuna industry time to come back with another submission. We said, ‘If you want, you can come back with another submission on how you go about it and not how many birds you kill.’ They went away and developed tori poles and down-shooting devices and eventually said, ‘Night setting only. We are going to operate at a time when albatrosses cannot negatively interact’—and the minister said, ‘Crack on.’ That is exactly what happened, Senator Carr. Their submission took these matters into consideration.

For your information, Senator Carr, the orange-breasted parrot could possibly be called a coastal parrot. You may or may not be aware that it travels only about two kilometres from the coast. As has already been said here today, it is at most risk when it is flying and moving between habitats. So perhaps they could consider spatially where they are putting the wind farm. The minister is not standing in the way of these things. Quite rightly, he has looked at the very best scientific advice. I am quite sure that, if someone comes up with a plan that can ameliorate those challenges, he would be supportive.

There has been a lot of derision and there have been a lot of Monty Python jokes—poorly done—but we have made a very long-term commitment to this animal. This is part of a 10-year recovery plan. This is not something that has dropped out of the air. It is not an attempt to dupe people in this place, as those opposite would have us believe. In fact, the people who have been doing the duping are those on the other side. We keep hearing from Senator Carr: ‘One in a thousand years’, ‘Be afraid’, ‘This is ridiculous’ and ‘Obviously it is a political conspiracy.’ I will quote straight from a document that was addressed to the authors of the report, Biosis. The question asked was basically: ‘Is this valid? Should we take this part of the report to mean one in a thousand?’ The document states:

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.

That debunks the one in 1,000 theory clearly and utterly. If you have heard that, take it from your mind because it is utter rubbish.

Photo of Ian CampbellIan Campbell (WA, Liberal Party, Minister for the Environment and Heritage) Share this | | Hansard source

It is one a year.

Photo of Nigel ScullionNigel Scullion (NT, Country Liberal Party) Share this | | Hansard source

It is one a year. What the report does state is:

Given that the Orange-bellied Parrot is predicted to have an extremely high probability of extinction in its current situation, almost any negative impact on the species could be sufficient to tip the balance against its continued existence. In this context it may be argued that any avoidable deleterious effect - even the very minor predicted impacts of turbine collisions - should be prevented.

It is unequivocal. I understand that. It says: ‘Do not have wind farms where these birds are unless you have some other mitigating device,’ which obviously has not been put forward in this first submission. (Time expired)

Question put:

That the motion (That the motion (Senator Carr’s) be agreed to.) be agreed to.