Jenny McAllister (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The Abbott government announced this afternoon that it will limit the ability of communities and environmentalists to challenge decisions under the Environmental Protection and Biodiversity Conservation Act. This is a reaction to the successful challenge to Adani's Carmichael project; however, the comments by the Prime Minister and the Attorney-General leave some confusion about precisely what the government is proposing. However, from what we have heard so far, we should be concerned that this is not proceeding on the basis of good policy.

This weekend we saw the first law officer of the Commonwealth accuse environmentalists of conducting 'vigilante litigation' because they had the temerity to challenge a government decision in court. Senator Brandis would do well to reflect on the role of the court, and on what exactly a vigilante is. A vigilante, by definition, is someone who seeks extra-legal justice, someone who works outside of the courts. What these environmental groups have done is the exact opposite of vigilantism. No-one has chained themselves to bulldozers or sabotaged mining equipment. Instead they have taken their concerns about the legality of a government decision to a court, as people are entitled to do in a civil society.

If this is vigilantism, it is difficult to see what method if any Senator Brandis would think legitimate. Protest and civil disobedience? Well, that is hardly likely to be acceptable. Court actions? From todays' statements, apparently not. Public lobbying and activism? The Liberal federal council agreed earlier this year to strip environmental groups of their charity status because of just these actions. It seems that Senator Brandis and this government would like to see environmental groups do nothing except politely wring their hands on the sidelines. And that is because this government is intent on pursuing a radical agenda that sees no place for environmental concerns.

Senator Brandis has described the environmental groups as having 'gamed the system'. The reason for this seems to be that environmental groups who opposed the Carmichael project because of its contribution to climate change then challenged the government's approval on the basis of breaches of planning law. Bringing a court case on the basis of legal technicalities is not called 'gaming the system; it is called 'the practice of law'. Senator Brandis knows this, which is why he did not raise the same concerns when windfarm opponents sought to shut down renewables projects on the basis of planning law concerns.

In truth, this government is not offended by the fact that environmental groups relied on legal technicalities to challenge its decision, but simply the fact that they sought to challenge the decision at all. As we have seen time and time again, this is a government allergic to scrutiny and oversight. The problem for the government is that this is a society that operates according to the rule of law; a principle that Senator Brandis has repeatedly described as 'fundamental'. Justice Dyson Heydon, a jurist who enjoys this government's full confidence, has said that 'the rule of law operates as a bar to untrammelled discretionary power...'

The way it does that is by insisting that government decisions be made according to law, irrespective of whether they concern important projects. Projects do not deserve less scrutiny simply because they are big. If anything they deserve more. The fact of the matter is that this decision does seem to have been made in breach of the relevant environmental legislation. A government department made a mistake when approving the Carmichael project, as occasionally happens when large and complex projects are concerned. It failed to consider matters that it was obliged to consider by law.

Senator Brandis has complained that 'we should keep political disputes in the parliament and leave the courts to resolve legitimate, bona fide legal disputes.' With due respect to the Attorney-General and his legal analysis, the courts do seem to have considered this to be a bona fide legal dispute. That is why they were prepared to hear the environmental groups' challenge, rather than dismissing it for lack of jurisdiction.

The options here are quite simple. On the one hand, if the government believes that there should be a legal requirement to consider these matters when making a decision such as this then the government should not object to the scrutiny provided by the courts and by third-party environmental groups. This scrutiny may delay projects, but the alternative is the government proceeding on a decision that is contrary to its own laws.

On the other hand, if the government does not believe that there should be a legal requirement to consider these matters, then it should have the courage of its convictions and change the law. As we all know, however, it will not do this because we are not talking about a radical environmental provision, but rather a Howard government era provision that is supported by many people inside and outside of this chamber.

Senator Brandis has chosen a third route—complaining about people holding his government to the laws it supports. It should not have been a surprise to this government that it had to take certain factors into account when making a decision about the Carmichael project. The law was there on the books for everyone to see, government decision makers and concerned citizens alike.

The courts are there to ensure that governments act according to law. Third-party litigants such as environmental groups play a crucial part in this. The reason we have environmental protection laws is because the community demands it. The public does not want projects that destroy the environment and in doing so endanger our health, spoil precious resources like water, or ruin ecosystems. The environment cannot speak for itself, however. We depend on environmental groups to raise concerns for us. There is a reason that the legal community calls cases like the Carmichael case 'public interest litigation'. It is because environmental groups are seeking to act in the public interest, not for their own personal interest. If they are not permitted to do so, who else has the expertise to recognise illegal planning decisions and the determination to bring them to the court's attention? The answer is probably no-one. Although that may make it easier for the environment minister to escape scrutiny for poor decisions, that is not how things work in a society governed by the rule of law.