Environment Protection and Biodiversity Conservation Bill Amendments - Speech in Parliaments

I join other Labor members in rising in opposition to the Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015. This is a small amendment but one which carries far-reaching consequences, directly in terms of our capacity to protect our precious natural environment but more broadly in terms of the strength of our civil society and, indeed, our democracy. In this bill, I think, we see a real narrowing in terms of important legal rights, the rights to seek judicial review on important matters of broad public significance, and a narrowing of our sense of our collective capacity. That was evident in the contribution of the parliamentary secretary who spoke before me in this debate, a contribution which did not address any of the important questions of principle or the practical consequences of the legislation that is before this House. It is telling as we consider this legislation that it speaks to a government that is always looking for someone else to blame.

Through all the contributions of government members, we have heard much talk about jobs, this from a government that has pushed the unemployment queues to beyond 800,000 for the first time in 20 years, this from a government that has no plan for jobs, this from a government which fails to address the evidence base underpinning the assertions they have made regarding the impact of the legislation that is before us on jobs. That is unsurprising because it is a complete red herring. This is a government that is not interested in evidence.

Here, today, we are discussing the removal of a provision that has served Australia well, a provision introduced by that well-known green vigilante, former Prime Minister John Howard and his government. Section 487 of the EPBC Act has effectively balanced interests of landowners, those seeking to develop land and exploit its resources, and the wider community—the present generation and future generations who deserve to inherit the same beautiful and pristine environment that we enjoy today. The provision recognises that there is such a thing as civil society and this is a good and, indeed, a vital thing, which makes the language of government members in this debate and in their public contributions around it so very troubling.

It really is extraordinary that government members seem to believe that it is as a matter of principle somehow wrong to act in interests other than narrow economic self-interest. Activism, community involvement, as we speak about so often in this place in other contexts, are of course good things. It is part of the bedrock of a healthy society and it is fundamental to a functioning democracy. Again, the language of this debate is something that we should have regard to, particularly given some of the other challenges we are working our way through on behalf of the nation in the parliament at the moment.

Is it helpful to characterise public interest litigation as 'lawfare'? Is it helpful to defame people acting on behalf of the environment as vigilante green activists and to talk about conspiracies? Is it helpful to talk about throwing grenades in this context? I do not think it is; it gets in the way of a debate about getting this balance right—balancing these interests. I think it is also worth reflecting on how the legislation we are debating today came before this parliament.

This bill which would amend the EPBC Act to repeal 487 of that act, which presently extends the meaning of a person aggrieved in the Administrative Decisions (Judicial Review) Act 1977. This bill is a clear attempt to restrict the ability of community members seeking to review the legality of decisions which are in the public interest—seeking to uphold the law, seeking to uphold the world's toughest environmental protections, as the parliamentary secretary spoke of earlier, and indeed that was a matter that the minister spoke of in his second reading—his rather disingenuous second reading. The effect of this short amendment would be profound. The amendment would not only impact the credibility of Australia's environmental policy that restricts citizens from questioning government decisions by judicial review; it also, like many other policies of this government, shows a clear divergence from contemporary attitudes towards environmental protection right across our society.

So how did this amendment come before the parliament? Clearly, there is no debate. It is a reaction to the government's embarrassing, flawed and ultimately failed approval process for the Adani mine, which, of course, is all about a major error on the part of the government, identified via litigation properly brought under this provision via proper standing arrangements, enabling these issues to be ventilated before the courts and enabling a process to be dealt with on procedural grounds—via consent orders, ultimately.

After 15 years of successful operation of this provision, we now have this amendment before us, which reflects the minister's attempt to bypass a legitimate democratic process. Not only is the amendment in reaction to this decision but, to my mind and to any fair reading, it contravenes the intention and object of the original legislation, despite what the minister has suggested.

It is useful to reflect on the debate in 1998, as the present legislation made its way through the parliament. The EPBC Act is, of course, the central national piece of environmental legislation. It provides, critically, a legal framework to protect and manage national and internationally important flora, fauna, ecological communities and heritage places. This act has been the overriding legislative embodiment of environmental protection throughout this millennium, including through the mining boom. It is pretty clear that its existence, including the provisions in respect of the extended standing for judicial review, has posed no problem for the economy or job creation—quite the reverse. We have seen the approval of many thousands of projects worth billions of dollars of investment under the Howard government and the Rudd and Gillard governments. The legislation has been tried and tested. The standing provision was initially implemented to overcome the problem of groups with legitimate public interest and legitimate environmental interest being unable to bring actions on behalf of affected communities if not directly in the communities themselves.

This was a matter canvassed in a very detailed report of a Senate committee in 1998. I think it is worth members participating in this debate reflecting on the work of that Senate committee in its report on the Environment Protection and Biodiversity Conservation Bill 1998 and the Environmental Reform (Consequential Provisions) Bill 1999. This committee was chaired by Senator Eggleston and was comprised of a majority of coalition members. This committee wholeheartedly endorsed a set clause, 485, which subsequently was enacted as section 487, which extended the meaning of the term 'person aggrieved' within the Administrative Decisions (Judicial Review) Act 1977. The report stated:

The Committee does not agree with the claims that the standing provisions will 'open the floodgates' of litigation. The Committee notes that the standing provisions under the Bill are consistent with those already provided in existing Commonwealth environmental legislation, such as the Hazardous Waste (Regulation of Exports and Imports) Act 1996. As such, this approach to standing has already been successfully used by the Commonwealth and does not represent a radical departure from current legislation.

This is a matter that government members should have regard to. It is very difficult to see a similar evidence base—a similar detailed process of inquiry that took place in 1998—evidenced in the bill before us, particularly having listened to some of the contributions from government legislators, which have been very heavy on rhetoric and very light on evidence. Perhaps that is not unusual and perhaps expecting more is expecting a bit too much in this place under this government. It is important to note also that the committee further noted:

… the standing provisions of the Bill reach a fair balance between enabling public involvement in enforcement of the Bill and ensuring that decisions under the Bill are not unnecessarily delayed or impeded by vexatious litigation. The Bill also provides certainty as to which persons have standing.

I think this gets to the nub of the debate we should be having around these issues. It is about striking an appropriate balance and providing certainty; this should not be a false debate involving rhetorical attacks on the motives of individuals and groups. The consequences simply are not there.

I urge government members to look at the work of their coalition colleagues in 1998, when they had a very detailed look at the matters underpinning this legislation. I remind them, as I referred to earlier, that this extended standing approach is not unique to the legislation we are debating now. It has also effectively been used in other forms of Commonwealth environmental legislation. When we go to the question of the evidence, it is important to note—despite some of the hysteria which has characterised the debate—that, since the commencement of the EPBC Act, there have been about 30 actions brought in the Federal Court by third parties who have challenged environmental impact assessment processes under the provisions of the act, hardly an overly burdensome number. The removal of section 487 extended standing provision has to be seen in that context and through also having regard to the balancing of the important principle of holding decisions of government to proper scrutiny, as we have seen most recently in the litigation which has caused this debate to come before the parliament.

This bill would limit standing to persons whose interests are adversely affected by the decision, based on federal administrative law. The extent of this standing is obviously much less certain than that previously provided for, which seems clearly to go against some of the rhetorical posturing of government members. There is, of course, a very strong public policy rationale for retaining these sorts of broad standing provisions for judicial review. Open standing and access to justice has a wide variety of benefits in maintaining adequate checks on government as well as clear avenues for effective enforcement of environmental laws.

We all have a responsibility in this place to ensure that the responsibility for the environment in which we live does not simply lie with those persons directly affected. This is clearly an intergenerational responsibility. Those opposite do like to lecture us on this side about intergenerational responsibility. There is no more profound intergenerational responsibility for those of us here now than to think about the quality of the natural environment we are going to leave for those who come after us. This is a collective responsibility. It is not only in the hands of those in executive government. It is not only in the hands of those who sit in this legislature. It is a responsibility that should extend to interested persons in the wider community acting properly. That has been the effect of section 487 over the past 15 years. It should continue to be so. Within these existing legal frameworks, it is evident that our broad civic responsibility to question government decision making on environmental protection needs to continue to be accommodated.

It is clear that the existing standing provisions—in fact, it is most evident through the contributions of government members that this has been borne out—have not attracted a negative response from the sector or the legal system. Since the commencement of the act, I note that there have been several reviews looking at its effectiveness. These reviews have supported extended standing provisions for judicial review in the EPBC Act. I note that very recently the Productivity Commission conducted a wide review of this. It looked at major projects rather than the act at large, but this review concluded:

… there is a public interest in allowing third parties to bring judicial review applications, as it allows the legality of the process to be enforced, providing an important 'safety valve' in the system.

And it does, and it should continue to be so. This work of the Productivity Commission, hardly a green vigilante group on these questions, provided again a very useful overview of the operation of our present environmental regulations in terms of major project approvals. It gives them a big tick, basically. It looks at the evidence, something members of this government are allergic to. It also looks again at the balancing that we are required to do—the balancing of the broad public policy objectives. It is very clear that we cannot simply tilt the balance in favour of this executive, or any executive. The public policy grounds for retaining section 487 in its present form and providing for the current certainty around extended standing for judicial review are clear.

This House should reject the bill that is before it, because the government has not made the case for change. It should reject the bill, because we should in this place stand up for the environment today and for the environment tomorrow. But we should also be rejecting this bill because its introduction would strike a deep blow into the effective operation of our democracy through inhibiting the operation of civil society actors to hold government decision making effectively to account. I urge government members to go back to 1998 and review the Senate committee. I urge government members to go back to 2013 and look at the work of the Productivity Commission. I urge government members to bring evidence and principle to this debate and to reject this legislation.


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