Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015

Mr STEPHEN JONES (Throsby) (19:07): Every morning when parliament resumes we go through an important ceremony where we do an acknowledgement of country. In the case of the federal parliament we acknowledge the Ngunnawal and the Ngambri people, who are the traditional owners of the land. In doing that, we acknowledge the importance of custodianship of country. This is an important recognition that this generation of Australians have an important responsibility to ensure that we look after the land that we walk on, that we look after the land that we own. This is a principle that is acknowledged in ancient law, the law of the first peoples of this great continent. It is also a principle that is acknowledged in European law. The ownership of land is not outright; it comes with certain limitations attached to it. We cannot do whatever we like with our land. The statute of this land has recognised from the very, very beginning that landholders have responsibilities to the environment, they have responsibilities to their neighbours and they have responsibilities to the Crown and to the state.


The stuff that we are talking about today is not about whether or not a coalmine should go ahead. It is not about whether or not a bunch of hippies in trees or people that the member for Petrie finds offensive should have a right to appeal in court. The stuff we are talking about today is about how the Commonwealth government appropriately regulates and protects the heritage and the environmental values of this country so that when my children and your children, Deputy Speaker, reach the same age that we have reached they will enjoy the benefits of the flora and fauna of this great nation. That is the stuff that we are talking about.

When you listen to the heated speeches of the member of Petrie and those who came before him, you could lose grasp of that important fact. It is about how we ensure the important environment and heritage values are protected into the future and how we ensure that, when governments stuff it up, when they make the wrong decisions, there are appropriate protections in place. None of us are perfect. We make mistakes from time to time. The environment minister made a mistake in the Adani case. That is quite clear. We are talking about how we ensure that, when governments make mistakes, there are appropriate checks and balances in place to ensure that those mistakes can be reviewed and reversed. That is what we are talking about.

We heard the member for Petrie talk about haters of humanity. I am sure that popular Sydney broadcaster Alan Jones—no relation—would be very surprised tomorrow morning to see that he has been described as being in the catalogue of the haters of humanity. I am sure the National Farmers Federation—more often on your side in the ledger of political disputes than mine, I have to say to the member for Petrie—would be very, very surprised to find themselves listed in the column of the haters of humanity and those you railed and ranted against as you walked us through your whistle-stop tour of your caravanning around Australia.

This bill, the Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015, is so bad that it has prompted a diverse range of people, from the Leader of the Opposition, Bill Shorten, the shadow environment spokesperson and the member for Port Adelaide to Alan Jones—not a group that are normally coupled together in the same brackets—and the National Farmers Federation, to join together in common voice. Indeed, there is a community driven campaign out there crowdsourcing to ensure that this terrible legislation never finds its way through both houses. The reason they are doing this is that they have found common cause in opposition to what is madcap legislation. That is what we are talking about here today.

The changes, we have heard, are designed to stop what is described as 'vigilante litigation' from environmental groups. This is the sort of nonsense that we regularly hear from members who have got up to support this legislation. What it really means is that any party—not just dedicated environmental groups but any party—will be forbidden from challenging large developments in court, and not just high-profile mining projects like Adani but any large development. Those representative organisations will be prohibited. This is occurring because the Attorney-General, Senator George Brandis, wants to scrap a section of Australia's environmental laws that allows parties to challenge environment approvals. Under the current laws, anyone 'adversely affected' by a decision or a failure to make a decision has the legal right to challenge it. This includes Australian citizens and residents who have acted 'for the protection or conservation of or research into the environment' at any time in the two years before the decision was made.

I want to make a point which has been lost in the fog of the debate. The appeals that are provided for in this legislation are not merits based appeals; they are judicial appeals. You would understand the difference between a merits based appeal and a judicial appeal, Mr Deputy Speaker. It does not fall to the courts to trawl through the decision of the minister or his delegate, the decision makers, to say, 'Would I have made that decision if I were in the boots of the minister? Would I have made that decision? Do I support this particular development or that particular development?' That is not what the legislation provides, and that is not what judicial appeal provides. All it provides for is the right of an interested person who fits the class of person to go to the Federal Court of Australia and say, 'We believe the law has not been followed. We believe the law of the land has been broken.'

That is exactly what happened in the Adani case. You would think when listening to the debates that you had an unwilling respondent forced to a decision by some feral judge of the Federal Court driven to a position by some equally feral litigant. In fact that is not what happened at all. The orders were consent orders. The orders in the Adani case were consent orders—that is, the respondent themselves acknowledged that the minister had stuffed it up. The minister had not followed the law and had to go back and review the decision and make the decision again.

There is ample opportunity in this situation for the minister to do the right thing: to ensure that he acts upon the advice and considers the advice of the threat to the two endangered species, which prompted the litigants in this matter. You might also infer by listening to some of the heated contributions by members of the coalition that people on a whim lodge a statement of claim or an application to the Federal Court, dragging the poor witless minister or the developer—the applicant—into the court, indifferent to any of the consequences. Deputy Speaker Vasta, you and I both know that is not true because, were that to be the case, then that applicant would be hit with considerable cost orders in the thousands, if not tens of thousands, of dollars.

It is not as if these applications are made on a whim. That is probably why less than one per cent of the applications that have been made have ever gone to court—an absolute minority of any of the applications have ever gone to court under this particular provision of the legislation.

What is clear is that we have a confected debate in the style of this Prime Minister and this government where black has to be black and white has to be white. If there is not an enemy within your view, you had better go out and find one—confect an enemy—to ensure that you can have a fight where there is no fight to be had. For over 15 years this legislation has been operating and operating very well. It was the former Howard government that introduced the legislation and it has been operating very well.

It is not only those of us on the Labor side of the House who have deep concern about what is being proposed in this legislation. Fiona Simpson of the National Farmers' Federation said:

The Adani decision seems to have been caused by either Adani or the department not applying the law properly, but then, suddenly and with no warning or consultation, we get this put forward … we prefer evidence-based policy making.

Those are the words of the National Farmers Federation, and we on the Labor side of the House could not agree more. We find ourselves in common cause with the National Farmers' Federation and the Sydney based broadcaster Alan Jones on this point. This is bad legislation not based on the evidence and it should be resisted. We are deeply concerned about the consequences of legislation such as this.

I come from New South Wales, a state which has an Independent Commission Against Corruption. In its 2012 report, the Independent Commission Against Corruption talked about the importance of third-party appeal rights. It had this to say in that report:

Third party appeal rights have the potential to deter corrupt approaches by minimising the chance that any favouritism sought will succeed. The absence of third party appeals creates an opportunity for corrupt conduct to occur, as an important disincentive for corrupt decision-making is absent from the planning system.

We agree. We think that these are important protections which actually improve the decision-making process, because a minister who knows that his or her decisions will be subject to a judicial review and that, if they get it wrong—if they do not follow the due process—they will be sent back to make that decision again. They will be ordered by a court to go back and make that decision again.

Let's be very, very clear for those on the other side of the House who are railing against the so-called haters of humanity: there is absolutely no proposal before the House to change or challenge the provisions within the legislation which go to the protection of the environment—none whatsoever. There is nothing before the House that says: 'These considerations that the minister must take into account—environmental, heritage or otherwise—should no longer apply.' Nobody is proposing that. All they are doing is proposing to change the rights of members of the public to hold the executive arm of government to account. We on this side of the House think that that is wrong.

I have talked about the experience of the legislation: some 5,500 projects have been referred to the federal environment minister in the 15 years of the operation—

Mr Brendan O'Connor: Yes.

Mr STEPHEN JONES: That is right: the member for Gorton is surprised about this—5,500 projects have been referred to the federal environment minister since the year 2000 for approval. I can inform you and the member for Gorton that a quarter—10 or 15 per cent would be a substantial number. The actual figure is less than half of one per cent—0.4 per cent; that is right. So where is this emergency?

I know they have precious little legislation to bring before the House. They cannot get it through their cabinet and they cannot get it through the parliament. But, surely, the people of Australia deserve a bit better than this. As the National Farmers' Federation have pointed out: this is not evidence based policy. They implore us as members of this place to reject the legislation. We implore members of the government to reject the legislation, because it is not good policy. It is not good for the government. It is not good for any government and it is certainly not good for the environment. I call on all members of this place to do the right thing and reject this legislation.