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Minority Report by Labor and Australian Greens Senators
1.1
The Environment and Heritage Legislation Amendment Bill (No.1)
2006 represents a significant retreat and watering down of the Environment
Protection and Biodiversity Conservation Act 1999 (EPBC Act). The
bill, if passed, will weaken the protection that the EPBC Act currently
provides for Australia's important biodiversity and heritage.
1.2
The bill represents a lost opportunity to address the
challenge of climate change through federal environmental
legislation. This
could have been achieved by making climate change a matter of national
environmental significance and ensuring that protecting Australia from the
adverse effects of climate change was an Object of the EPBC Act.
1.3
While the bill has a small number of positive aspects, especially in
reducing red-tape and streamlining some administrative processes – which Labor and
Australian Greens Senators support – these are heavily outweighed
by the more negative aspects of the bill. The bill, as it stands, provides
greatly enhanced discretionary power to the Minister, curtails third party
appeal rights, reduces transparency and accountability, undermines public
consultation, and further politicises the threatened species and heritage
listing processes.
1.4
The EPBC Act has the potential to make a significant contribution to the
protection and conservation of the Australian environment – but this potential
will only be realised if the environment and heritage provisions of the Act are
improved, not emasculated as occurs under the proposed amendments.
1.5
Witnesses to the inquiry highlighted the significant
downgrading of the environment and heritage protections in the Act, and an
increased emphasis on promoting development interests. Rev Comben, Chair of the
Australian Council of National Trusts, told the committee that:
This bill is more than just administrative changes. It
represents a real shift from environment and heritage conservation towards
facilitating developments and catering to development interests. This is not
being melodramatic. Examples of this shift are evident right throughout the
bill. The explanatory memorandum explicitly states this objective. The expanded
use of management policies and plans and bioregional plans will reduce the
amount of scrutiny which proposals will be subjected to. Individuals and groups
are having further barriers placed in front of them when they wish to challenge
decisions. Approvals for actions will be further entrenched by the new section
158A which prevents changes to approvals even though the action may be having a
very detrimental effect on the environment or heritage.
This legislation, if passed, will continue to change the very
face of cultural heritage protection as we know it. Special parts of
Australia’s spirit might be lost as a result of this bill, firstly because
there are no guarantees that states or territories could cope with the
avalanche of responsibilities being unilaterally hoisted around their necks and
secondly, because of the ministerial discretions which this bill delivers to
the minister.
...We do not believe it promotes the legislation which was
originally put into place. We believe that this, in actual fact, will reduce
the protection for Australia’s heritage.[1]
1.6
Witnesses also emphasised the retreat from national
responsibility and international best practice as lying at the heart of the
bill. Mr Griffiths, Executive Officer of the Australian Council of National
Trusts, stated that:
....I would say that this bill represents a further retreat by the
current government away from any national responsibility for heritage
protection.[2]
1.7
Likewise, Mr Glanznig, Program Leader, Biodiversity Policy
with WWF (World Wildlife Fund)-Australia stated that:
...on balance the bill is a backward step for the Act. It is a
retreat from international best practice for a number of reasons. I highlight
the retreat from international best practice, which is to have a scientific
objective listings process and a process that attempts to achieve a mature list
of threatened species and communities and a mature list of heritage sites as
quickly as is practical. The second is the significant increase in ministerial
discretion. That is taking us away from an objective approach. The third is a
curtailment of public accountability, and again that has two dimensions to it.
One is the restricted ability of the community to seek reviews of ministerial
decisions and the second is the increased restrictions placed on third-party
enforcement opportunities.[3]
1.8
Of particular concern to Labor and Australian Greens
Senators is the fact that no major environmental or heritage organisation
supported the bill, although many had supported the original legislation.
1.9
WWF-Australia, the Tasmanian Conservation Trust (TCT) and
the Humane Society International (HSI) indicated that they have been active
supporters of the EPBC Act but have serious reservations about the current bill,
emphasising the 'undemocratic' nature of several of the amendments:
Based on the nature of the current proposed amendments
particularly in relation to review of Ministerial decision, threatened species
nomination and listings process, and heritage nomination and listings process,
it is important for our organisations to draw a line in the sand. Without
significant changes to the bill, HSI, TCT and WWF believe that the Act will be
weakened and will no longer reflect international best practice. Many of the
proposed amendments are undemocratic in nature – they will disenfranchise the
public and are a significant backward step for public access and government
accountability. Additionally, they will undermine the raft of public
nominations that have been already submitted by individuals and organisations
in good faith by not including a provision that enables already submitted
nominations to be subject to the current public nomination process.[4]
1.10
Mr Kennedy, Director of HSI indicated that he felt
disheartened with the changes proposed in the current bill
after energetically supporting the original Act:
As you know, we have been supporters of the EPBC. It is
undoubtedly, by any standard, a very powerful piece of law. I have been
campaigning for 20 years to have new federal laws of one kind or another put in
place. So I am personally defeated by these amendments. We have put in an
enormous amount of work over the last 15 years to see this sort of law in place
at the Commonwealth level. We have experience in using the law—not just this
but other federal laws and treaties—to find better protection for biodiversity.
We well understand what you can and cannot do under this law and what these
amendments will in fact restrict us from doing in the future. To have to go
back, in some cases to square one, and fight for those public rights is, as I
say, pretty much defeating.[5]
1.11
The proposed reforms also appear to ignore the findings of
the only major independent review of the Act by the Australia Institute. In
2005 the Institute published a discussion paper on how effective the Act had
been in the first five years of its operation. The report concluded that the
Act's environmental assessment and approval (EAA) regime had failed to produce
any noticeable improvements in environmental outcomes. More specifically, it
found that the actions that were having the greatest detrimental affects on the
matters of national environmental significance were rarely referred to the
Federal Environment Minister and, when they were, the Minister had failed to
take adequate steps to ensure appropriate conservation outcomes. Further,
despite evidence of widespread non-compliance, the Commonwealth had only taken
only two enforcement actions to the EAA regime in five years.[6]
Consultation process and conduct
of the inquiry
1.12
Labor and Australian Greens Senators
believe that the consultation process in relation to the development of the
bill and the consideration of the bill once it was publicly released was
totally inadequate.
1.13
Organisations complained about the lack of consultation in
relation to the bill. Dr Pearson, representing Australia-ICOMOS (International
Council on Monuments and Sites), noted that:
I think we had one briefing the day before the bill was put
before parliament. There was no consultation at that level on what went into
the bill.[7]
1.14
Mr Tupper, National Liaison Officer with the Australian
Conservation Foundation (ACF), emphasised the lack of formal consultative
mechanisms in the development of the bill:
The other point to make just in general about the consultation
process for these amendments is that there used to exist a national environment
consultative forum with the environment groups and the minister. That has not
met for over 18 months. You would expect that in consideration of changes of
this order, they would call for a meeting and give some briefing and advice.
The signal it sends out is simply one that says to a lot of local groups who
are fairly passionate about protecting environmental values in their location
or region that these changes are building in more roadblocks to their work. The
signal is going out that it will make it harder for them to be involved in future.[8]
1.15
Submissions and witnesses to the inquiry complained about
the very short time-frame to consider and comment on the bill – only two weeks
– especially given the length and complexity of the bill which runs to over 400
pages with over 800 amendments, together with the Explanatory Memorandum
of over 100 pages.[9]
1.16
The ACF, reflecting much of the evidence, stated that:
...we would like to express our concern that the timeframe allowed
for consideration of the Bill is wholly inadequate to ensuring well-considered,
thoughtful analysis of the Bill. The Environment Protection and Biodiversity
Act 1999 ('EPBC Act') is a very complex piece of legislation, and the Bill
itself runs to over 400 pages, not including the explanatory memorandum.
To expect civil society groups to analyse this volume of
material and to prepare detailed, sensible commentary in only two weeks is
simply unrealistic.[10]
1.17
WWF-Australia also expressed strong reservations about the
process and timetable for consideration of the bill:
In relation to the process, given the substantive nature of the
proposed changes to the threatened species and heritage nomination process for
example, it would have been appropriate to have had a process that included a
discussion paper for public comment to allow proper analysis and scrutiny of
the proposed changes. The exceptionally short proposed timetable for passage of
this large complex bill through the Parliament will thwart proper parliamentary
scrutiny and consideration.[11]
1.18
The Department, commenting on the consultation process on
the bill, conceded that an exposure draft of the bill had not been distributed
to interested organisations, with the legislation only released publicly on 10 October 2006.
Senator CARR—How long has the public had to examine this legislation?
Mr Early—It was introduced into the parliament on 12 October.
CHAIR—That is a policy issue as to when the government
introduces legislation.
Senator CARR—Did the department recommend that time line be
followed?
Mr Early—The department, as the Chairman said, has no role
whatsoever in how the government allocates parliamentary business.
Senator CARR—Did the department recommend any particular period
of time for public consultation?
Mr Early—No, and it would not be appropriate to do so.
CHAIR—Which I think you know, Senator Carr.
Senator CARR—Which organisations did you consult?
Mr Early—We have been consulting, having discussions, with
various organisations for the past 12 months. I am not quite sure what sort of
time frame you are talking about.
Senator CARR—That is the point, you see. How many people got to
see an exposure draft of the bill?
Mr Early—Nobody.
Senator CARR—Surely an exposure draft would have been circulated
to other departments.
Mr Early—No.
Senator CARR—So other Commonwealth departments have not seen
this bill either.
Mr Early—They have seen it now.
Senator CARR—Before it went to cabinet was an exposure draft
distributed to departments?
Mr Early—We do not take the bill to cabinet.
Senator CARR—I see—just the drafting instructions.
Mr Early—Yes. The government considered what it wanted in the
bill in the normal course of events and departments were consulted and have
been involved in that discussion over the last 12 months. But consultation on
the bill occurred at the government level prior to the finalisation of the
bill.
Senator CARR—When was the mining council given a copy of bill?
Mr Early—I did not give them one but I assume they got one after
12 October.
Senator CARR—So no organisation got a copy of the bill in
exposure draft form or any other format prior to its tabling in the parliament.
Mr Early—I was just advised and reminded that the
Attorney-General’s Department, of course the Department of the Prime Minister
and Cabinet and the department of territories saw relevant parts of the bill.
Senator CARR—But they would not have seen a full bill.
Mr Early—I think PM&C and AG’s probably would have.
Senator CARR—When did they see that?
Mr Early—They have been involved in the drafting. Obviously,
Attorney-General’s have been involved in a number of the issues. This is the
normal sort of development of legislation.[12]
1.19
Labor and Australian Greens Senators also
note that the Australian National Audit Office is currently undertaking a review
of the EPBC Act and the amending bill which is due to be released in December
2006 or January 2007. The Department indicated that there
had been minimal feedback in relation to the report:
Senator SIEWERT—I am aware that the Australian National Audit
Office are currently carrying out an assessment. Has there been any feedback
from them on their assessment so you could feed any changes that you think
would be necessary into these amendments?
Mr Early—Not really. They will give us a draft report which we
will then comment on, and it will then be released to the parliament...but
certainly we believe some of the issues that they will raise will be addressed
by the amendments, but we will have to look at the report when it is finalised.[13]
1.20
Labor and Australian Greens Senators believe
that the findings of this review could have provided useful insights and
possible amendments to the Act. The opportunity to utilise the Audit review will
be lost due to the Government's rush to push the bill through the Parliament
before the end of the year – prior to the Audit report being tabled.
1.21
The hearings on the bill were also less than satisfactory –
with less than two full days of hearings, both in Canberra. In most cases Labor
Senators were given just 12 minutes (and the Australian
Greens 6 minutes) to ask questions of each witness.
1.22
Despite the severe shortcomings of the process, the
evidence received by the committee did highlight a number of significant
weaknesses with the bill. It is to those matters that we now turn.
Climate
Change
1.23
Labor and Australian Greens Senators are very concerned
the bBill does not address Australia’s greatest environmental
challenge, climate change. In fact, there is no mention
of climate change in the 409 pages of amendments, in the Explanatory
Memorandum or in the Second Reading Speech. The existing EPBC Act also
fails to mention climate change, despite the significant impact climate change will have on the matters of
national environmental significance and, more generally, Australia’s natural environment.
1.24
The
Australia Institute questioned the failure to address climate change in the bBill:
Senator CARR—Perhaps I can confirm this. In this legislation is
there any use of the term ‘climate change’
that you have seen?
Mr Macintosh—No. There is nothing in there. There was a Federal
Court case that was taken on the
grounds that a coal-fired
power plant development was likely to cause climate change and, as a result,
have a
significant impact on
threatened species, but that was not successful, underlining the fact that
climate change
is not picked up by this
legislation.
Senator CARR—What is the reason for that, in your judgement?
Mr Macintosh—The absence of ‘climate change’ in there?
Senator CARR—Yes.
Mr Macintosh—I do not believe this government thinks that
climate change is a priority.[14]
1.25
Mr Tupper of the Australian Conservation
Foundation was also concerned that climate change was not being addressed:
It is a critical
time that we are in, and to not have climate change considered as an issue of
national environmental significance and impact is not seeing the forest for the
trees. There may be benchmarks, for example, of all the work that is going into
protecting marine areas, yet just a two-degree increase in water temperature in
the reef means that we will see substantial areas bleached. That stands out as
a particular missed opportunity. I should mention there that we do not see that
inserting a climate change trigger into the EPBC Act is the solution to climate
change; we are not that naive. But if we did that, it would send a very strong
signal...[and] will give greater
strength to our international credibility and the international case for taking
strong action on climate change.[15]
Labor and Australian Greens Senators strongly support the
inclusion of a climate change trigger in the EPBC Act.
1.26
The
current requirement under s.28A of the Act is for the Minister to review the
need for new triggers every five years and to publish a report on the findings.
We object to the proposal to remove this provision, and argue that the passage of the bill should be delayed
until the Minister has tabled the findings of the current review.
Review of Ministerial decisions and third party enforcement
1.27
The bBill
reduces the ability of third parties to challenge the merits of Ministerial
decisions. The bBill also
reinstates a significant barrier to civil enforcement (regarding undertakings
for damages). ALP Senators strongly oppose these amendments.
Review of Ministerial decisions
1.28
There are a number of amending provisions which remove the
right of review by the Administrative Appeals Tribunal (AAT) of Ministerial
decisions. The affected decisions are:
- Decisions to issue or refuse a permit; specify, vary or
revoke a condition of a permit; impose a further condition on a permit;
transfer or refuse to transfer a permit; or suspend or cancel a permit in
relation to a listed threatened species or ecological community (section 206A);
- Decisions to issue or refuse a permit; specify, vary or
revoke a condition of a permit; impose a further condition on a permit;
transfer or refuse to transfer a permit; or suspend or cancel a permit in
relation to a migratory species (section 221A);
- Decisions to issue or refuse a permit; specify, vary or
revoke a condition of a permit; impose a further condition on a permit;
transfer or refuse to transfer a permit; or suspend or cancel a permit in
relation to whales and other cetaceans (section 243A)
- Decisions to issue or refuse a permit; specify, vary or
revoke a condition of a permit; impose a further condition on a permit;
transfer or refuse to transfer a permit; or suspend or cancel a permit in
relation to listed marine species (section 263A);
- Decisions to issue or refuse a permit; specify, vary or
revoke a condition of a permit; impose a further condition on a permit;
transfer or refuse to transfer a permit; or suspend or cancel a permit; issue
or refuse a certificate under section 303CC(5) or a decision of the Secretary
under a determination in force under section 303EU; make, refuse, vary or
revoke a declaration under section 303FN, 303FO, 303FP in relation to
international movement of wildlife specimens (section 303GJ);
- Ministerial decision to give advice in relation to
contravention of a conservation order (sections 472 and 473).
1.29
Many submissions, including from the Law Council of
Australia opposed these amendments.[16]
The Law Council stated that:
The argument put forward in the Explanatory Memorandum that
these provisions leave 'the merits of these important decisions to be dealt
with by the Government' do not allow for the position where the Minister in
applying the law under this Act may have applied the law incorrectly. The
exercise of the Minister's discretion in such a way should be reviewable by the
AAT.[17]
1.30
The Australian Network of Environmental Defender's Offices
(ANEDO) also argued that 'important decisions' must be subject to review if the
EPBC regime is to be 'legitimate, credible, transparent and accountable. Merits
review also enables the AAT to consider the effectiveness of conditions imposed
in relation to these decisions'.[18]
1.31
ALP Senators strongly support the ability of third parties
to challenge the merits of Ministerial decisions. It is essential for the
credibility and legitimacy of the EPBC regime that avenues for review are
maintained and that community organisation and individuals are able to
participate in this process.
Third party enforcement
1.32
While Labor and Australian Greens Senators are
broadly supportive of the amendments aimed at strengthening the compliance and
enforcement regime under the Act, we strongly oppose the proposed amendment to
repeal section 478, which currently prevents the Federal Court from requiring
undertakings for damages as a condition of granting an interim injunction.
1.33
WWF-Australia, HSI and TCT stated that the proposed amendment
will significantly increase the financial risk of third parties seeking
injunctions and in doing so can be expected to lead to a virtual cessation of
third party enforcement actions.[19]
1.34
The organisations noted that:
It is instructive to note that third parties have used the court
system very judiciously, and given the Australian Government has such poor
surveillance arrangements in place to ensure compliance, enabling individuals
and organisations to ensure the objects of the Act are achieved should be
encouraged not dissuaded.[20]
1.35
ANEDO made the important observation that:
Environmental law is public law and proper access to justice
requires that the public is able – in appropriate circumstances – to use the
court system to seek redress. The Court always has the power to strike out
proceedings if they are vexatious, frivolous or constitute an abuse of process.
Public interest environmental litigation is essential for correcting honest
mistakes of government regulators and developing legal principles for improved
environmental protection.[21]
Penalties
1.36
The bBill proposes
to expand the range of enforcement powers and penalties which can be applied
under the EPBC Act. These include more than 30 strict liability offences, a
great many of which are accompanied by periods of imprisonment and fines well
in excess of the accepted limit of 60 penalty units for these types of offences;
the detention of suspected foreign offenders; the power to search individuals
and their clothing, without a warrant; and the power to conduct strip searches,
again, without a warrant.
1.37
ALP Senators believe that by any standards these are
significant and intrusive powers and should only be conferred in exceptional
and specific circumstances. Proposals for the inclusion of such powers in legislation
should be accompanied by detailed explanation in the Explanatory Memorandum and
also by appropriate safeguards. The Explanatory Memorandum for the bill and the
bill itself falls well short of this expectation.
1.38
ALP Senators note that a recent unanimous report of the
Senate Standing Committee for the Scrutiny of Bills, which runs to some 12
pages, raised serious concerns about the absence of reasons or explanation in the
Explanatory Memorandum for the serious new offences and penalties in the bBill
as well as the appropriateness of the range of enforcement powers and penalties
in the bill.
1.39
In relation to strict liability, the Scrutiny of Bills
report states that:
A very great number of items in Schedule 1 would create offences
to at least one element of which strict liability applies. The items are 5, 7,
12, 14, 16, 18, 20, 22, 24, 26, 28, 32, 39, 41, 44, 46, 50, 52, 57, 59, 61, 63,
64, 66, 71, 73, 75, 77, 80 and 82. The Committee notes that in respect of some
of these offences, the maximum penalty is seven years imprisonment and 420 penalty
units.
The Committee notes the reference on pages 25 – 26 of A Guide
to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers,
February 2004 (the Guide), that in preparing legislation under which strict or
absolute liability is imposed, agencies should familiarize themselves with the
Committee’s Sixth Report of 2002: Application of Absolute and Strict
Liability Offences in Commonwealth Legislation. In particular, the Guide
refers to the following principles from the Committee’s Sixth Report which
accord with the Government’s approach to such provisions:
- ‘strict liability should be introduced only after
careful consideration on a case-by-case basis of all available options; it
would not be proper to base strict liability on mere administrative convenience
or rigid formula’;
- ‘strict liability offences should be applied only where
the penalty does not include imprisonment and where there is a cap on monetary
penalties; the general Commonwealth criteria of 60 penalty units ... appears to be
a reasonable maximum’; and
- ‘strict liability may be appropriate where it is
necessary to ensure the integrity of a regulatory regime such as, for instance,
those relating to public health, the environment, or financial or corporate
regulation.’
The Guide goes on to advise that ‘[i]f the explanatory
memorandum to a Bill is not considered to provide adequate explanation for any
use of strict or absolute liability, the Committee will seek an explanation
from the responsible Minister.’
The explanatory memorandum makes no reference to the principles
set out in the Guide or the Committee’s Sixth Report, and while stating the
effect of the proposed amendments, gives no explanation or justification for
these apparent departures from those principles.[22]
1.40
With regard to Schedule 1, Item 835 – detention of
foreigners – the Scrutiny of Bills report stated that:
The Committee has a long standing concern about the
appropriateness of conferring police powers on persons other than police
officers and the appropriateness of applying a power to search persons under
arrest to persons under detention. As a minimum, the Committee expects the
explanatory memorandum to provide a detailed justification for applying such
powers in the proposed circumstances and an assurance that appropriate
protocols or safeguards are to be implemented and an explanation of the nature
of such protocols or safeguards.[23]
1.41
In relation to Schedule 1, Clause 17 – which would allow approved
officers to conduct strip searches on detainees in certain circumstances – the
Scrutiny of Bills report notes that:
...the Committee notes that no justification or reasons are
provided in the explanatory memorandum for the application of strip search
provisions in this context. The Committee considers that the power of strip
search represents a significant trespass on personal rights and liberties and
should only be conferred in exceptional and specific circumstances. Proposals
for the inclusion of such powers in legislation should be accompanied by
detailed explanation and justification in the explanatory memorandum and
appropriate safeguards.[24]
1.42
Western Australian Liberal Senator David Johnston, in
speaking to the report in the Senate, raised serious concerns about the
offences and penalties contained in the bill and their lack of justification in
the Explanatory Memorandum:
This explanatory memorandum is probably one of the most
appalling I have ever seen in the short time I have been in the Senate. It
discloses no motivation, no reasoning and no justification for some of the most
draconian powers that this parliament can conceivably and possibly enact:
rights of search and seizure without warrant, rights of personal frisking
without warrant ... this legislation should go back to the drawing board.[25]
1.43
The response of
government Senators to these concerns borders on the ludicrous. Despite widespread and
sustained concern expressed
by many witnesses and by government members of the Scrutiny of Bills Committee, government Senators are evasive, seeking to
mask the ram-raid tactics of the
government with pious hopes:
The committee notes
the concerns raised by the Scrutiny of Bills committee in its Alert Digest
No.12 of 2006 and hopes that the minister’s responses to the
questions asked will address these concerns.[26]
1.44
Labor and Australian Greens Senators are also
concerned at the lack of time provided to consider the Committee’s draft
report. Senators were allowed less than twenty four hours to consider the draft
report and to vote on it.
1.45
Such an inadequate
response is typical of
the slapdash, shoddy and contemptuous way in which
this bill has been introduced and considered by Parliament. Such perfunctory
examination of controversial legislation is inimical to the interests of good
public administration, while the high-handed way in which heavily abbreviated
time constraints have been imposed on parliamentarians and the public alike to consider this bill borders
on contempt of the parliamentary process.
1.46
Concerns were also raised by witnesses regarding the
proposed offences and penalties in the bill. Mr Macintosh, Deputy Director of
the Australia Institute noted that in relation to Schedule 1, Item 835 –
detention of foreigners suspected of committing an offence:
The most alarming part of that is that it allows suspects to be
detained for up to seven days while the offence is investigated. I am not an
expert in federal criminal law, but what I understand is that is more than you
see in relation to most other offences, and more than what is provided for
under the Crimes Act 1914.
CHAIR—I believe that those penalties have come from the
Fisheries Act and they are already in place, so they already are part of the
Australian legal framework for dealing with foreigners coming in on fishing
vessels. Would you not agree that if they are in place already then one should
perhaps not be overly concerned about them being also included in this bill?
Mr Macintosh—No. I have raised the same concerns in relation to
those fisheries provisions. I think they are draconian and quite
discriminatory, because they apply provisions inconsistently to foreigners. So
I would request that the government adopt a more consistent approach to the
treatment of foreigners and to its nationals. Under the fisheries provisions,
it has got a provision that results in the reversal of the onus of proof, which
breaches the International Covenant on Political and Civil Rights. So I do not
understand why this provision is in there, and I am quite concerned about its
civil rights implications.[27]
1.47
Mr Smith, Chief Executive Officer of ANEDO, stated that
strict liability offences should not attract jail sentences, as proposed in the
bill:
Senator CARR—The maximum penalty, seven years’ imprisonment, 420
penalty units—do you think that is reasonable?
Mr Smith—For intentional offences?
Senator CARR—It says here in terms of strict liability.
Mr Smith—Strict liability offences should not attract jail
penalties.
Senator CARR—But it has here ‘a provision of seven years’ jail’.
Mr Smith—Right. That, I would say, is an approach that we would
not support. It is unsupported by the criminal law. That has been fundamental
through our criminal law tradition. Where someone does something intentionally
or recklessly, it is allowable, for want of a better word, for the state to, on
occasion, jail people for those offences. Where it is strict liability, then
they are more issues of public policy, where you set the level of the fine at
such a level so as to deter those people from doing it. It is not generally
acceptable to impose jail penalties for strict liability offences.[28]
Resourcing
1.48
Evidence to the inquiry from a wide range of groups,
including environmental, mining and development interests, argued that the
Department is significantly under-resourced to effectively administer the Act
as it currently stands and a number of proposed changes in the bill will
require additional resourcing in the future.[29]
1.49
Mr Berger, Legal Adviser to the ACF, commented on the
insufficient resourcing of the Department:
Many aspects of the bill appear to be a response to inadequate
resourcing of the Department of Environment and Heritage. In particular, the
proposals to establish priority lists for threatened species and ecological
communities and to establish themes for nominations of matters appear to be
based on inadequate resources to actually implement the act as it currently
stands. Just to give a broad sense of the numbers, a generous reading of the
budgets for DEH leads us to think that there is somewhere between $15 million
and $30 million per year allocated for planning and management of threatened
species, threatened ecological communities and key threatened ecological
processes. That is about one-20th of the amount that we as a society spend
every year on subsidising the consumption of aviation fuels, so we would say
the priorities are exactly backwards here...
So the resourcing for the act and in particular for the
threatened species provisions of the act is perhaps one-10th or one-20th of
what is actually needed to accomplish the purposes, and establishing priority
lists and additional processes on top of that is not going to fix that
fundamental problem.[30]
1.50
The ACF argued that the inadequacy of resources is evident
in the review of DEH’s operation of the Act for 2005-06. ACF noted that 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.[31]
1.51
WWF-Australia also noted that the EPBC Act could be
implemented effectively if the Commonwealth chose to provide the Department
with an adequate level of resources.[32]
1.52
The Minerals Council of Australia noted that additional
resources will be required by the Department to implement proposed changes in
the bill:
...the MCA also recognises that a number of the proposed changes
will require significant additional resources. Specifically, the provisions for
the extension of liability to employers and landowners, have the potential to
significantly affect the Australian minerals industry, and should they be
accepted, will require a program of policy development and stakeholder
engagement to ensure that they do not result in unintended consequences.
The MCA has previously raised concerns that the administration
of the Act is significantly under-resourced as it is currently structured.
Accordingly, the MCA strongly advocates a significant injection of additional
resources into the Department to ensure the effective implementation of the
proposed changes and to enhance their ongoing administration.[33]
1.53
Labor and Australian Greens Senators believe
that if the Government was serious about making the EPBC Act work effectively,
it would be providing the Department with more resources to do its job, instead
of watering down the Act to fit the meagre resources the Government is prepared
to spare for environmental protection.
Threatened species nominations and listing
1.54
ALP Senators have grave concerns in relation to the
proposed process for listing threatened species and ecological communities in
the bill. Instead of the current objective and scientifically determined
process, the Minister will now have broad arbitrary discretion to decide what
can and cannot be assessed for listing and protection under the EPBC Act.
1.55
Evidence to the inquiry raised several concerns with the
proposed nomination and listing process. WWF-Australia stated that:
The amendments open the way for the listing process to become
highly and blatantly politicised and introduces provisions that are easily open
to abuse to avoid politically difficult decision making. Enactment of these
amendments will be a major retreat from what is national and international best
practice.[34]
1.56
The Australia Institute noted that:
Under the new process, there is an annual assessment cycle.
Members of the public can make nominations at the start of the cycle. However, the
list of nominations is vetted first by the TSSC [Threatened Species Scientific
Committee] then by the Minister...
This process vests almost complete control of the listing process
in the Minister and the handpicked TSSC. It will guarantee that controversial
nominations are avoided and that the lists only include those species and
communities that are politically palatable. As history proves, this inevitably
means that the species and communities that are most in need of protection will
be excluded.[35]
State and Territory lists
1.57
Submissions and other evidence noted that the repeal of
section 185 removes the requirement for the Scientific Committee to assess the
threatened ecological communities listed on the state and territory lists
gazetted by former Minister Robert Hill in November 2001. This wipes over 500
threatened ecological communities from the Committee’s current assessment list.
Section 185 was designed to provide a strategic framework for the Scientific
Committee to systematically consider all the ecological communities receiving
protection under state and territory legislation for their appropriate national
protection under the EPBC Act.[36]
1.58
ANEDO stated that while the repeal of section 185 'may
lighten the administrative burden for DEH and the Scientific Committee, and
ease political pressure regarding controversial listings, it is heavy handed
and arbitrary. It is contrary to the principles of ESD and good governance to
deal with the backlog of listings in this way'.[37]
1.59
Similarly, the Australia Institute argued that the
amendment:
...has obviously come about because of the Government's desire
to avoid listing politically contentious species and its failure to adequately
maintain the lists....The proposed amendment to remove the obligation to maintain
the lists in an up-to-date condition will further erode the effectiveness of
the Act.[38]
1.60
The ACF also registered its misgivings, noting that:
....we are deeply concerned that the huge backlog of unassessed
threatened communities will simply be waived away by the legislative fiat of
repealing section 185. This will not make the communities any less threatened
in the real world, although presumably it will tidy up the bureaucratic record.[39]
1.61
The Department was fairly equivocal regarding the impact of
the repeal of section 185 on unassessed threatened communities, indicating that
'they will be dealt with' but not in the way that some environmental groups
'would like'.
Senator SIEWERT—...HSI, as you will be aware, are concerned about
what is going to happen with a lot of the nominations they have in the system
at the moment. For example, will the 500 critical habitat nominations that are
in fall off the list?
Mr Early—I think it is a bit hypothetical. Those nominations
will go into the process, and whether they make the list for consideration will depend on what the Threatened Species
Scientific Committee advise the minister. If they do not make the list, they
can be considered the following year, as a rule.
Senator SIEWERT—Does that apply to all their other nominations?
You have seen their list.
Mr Early—Transitional arrangements will apply to all the
existing nominations. What status they have reached will depend on how they go
into the new process.
Senator SIEWERT—So their concerns about what may happen to their
nominations is justified, in that they may or may not be dealt with in the new
process.
Mr Early—They will be dealt with but not in the way that they
would like, I guess.
Senator SIEWERT—Yes.
Mr Early—It is true that, at the end of the day, they may not
progress immediately, and that is part of the process that we are looking for
to get more strategic and to use the resources in the best possible way to get
the best environmental outcomes.[40]
Annual thematic nominations process
1.62
The current public nomination provision (section 191) is
repealed by the bill, and replaced with an annual process for thematic
nominations. The theme for annual nominations is determined by the Minister.
The bill provides for a minimum 40-day period in which nominations may be
submitted on that theme.
1.63
ANEDO stated that these amendments significantly limit the
public and scientific involvement in the listing of species:
In deciding upon a theme, the Minister has broad discretion
(section 194D) which may relate to a particular group of species, a particular
species or a particular region of Australia. This is not a definitive list of
criteria and so in practical terms, this means that a range of considerations
may come into play, not just the conservation status of the species. It is
likely that the more controversial species (such as those currently
commercially exploited) are unlikely to qualify thematically.[41]
1.64
The ACF also raised concerns with this approach:
Themes may be administratively convenient or politically
attractive, but alas species do not become threatened thematically. Rather than
focusing resources, a 'thematic' approach to assessing threatened species and
ecological communities runs the risk of permanently ignoring meritorious and
ecologically important species and communities that don’t fit the identified
themes or don’t make the priority list, for whatever reason.[42]
Priority assessment list
1.65
The bBill
provides that once all nominations relating to the theme for the year are
received, the Scientific Committee has 40 days to give the Minister a 'priority
assessment list'.
1.66
Submissions noted that the Minister will have an
extraordinary level of unfettered discretion to decide which nominations the
Scientific Committee can assess. ANEDO noted that the Minister may make changes
to the proposed list within 20 days, including omitting an item (section 194K),
before making a finalised priority assessment list. There is no public
consultation on the proposed list, and the Minister may have regard to 'any
matter that the Minister considers appropriate' in reaching this decision. It
is therefore possible under the amendments for a nominated species to be
removed from the final Priority Assessment List on commercial or economic
grounds, regardless of the conservation status of that species.[43]
Conservation advices and Recovery
Plans
1.67
Section 266B requires that there is a mandatory approved
conservation advice for each listed threatened species and each listed
threatened community. Conservation advices are not legislative instruments. Sections
267 and 269AA provide that it is no longer compulsory to have a recovery plan.
The bBill
provides broad Ministerial discretion regarding recovery plans. Section 270
(2A) requires that certain issues such as the identification of critical
habitat in a recovery plan, need only be addressed to the extent to which it is
practicable to do so.
1.68
Submissions expressed concerns about these proposed changes.
WWF argued that:
It is extremely unlikely that broad Conservation Advices (not
legislative instruments) would lead to meaningful conservation action at
appropriate scales...The removal of the compulsory writing of recovery plans for
listed species or communities removes a significant potential conservation
benefit attached to listing. Furthermore, given the increased ministerial
discretion with respect to listing, the Minister may decide not to list species
or communities that he deems not to require a recovery plan.[44]
Heritage nominations and listing
1.69
Provisions in the bill change the listing processes for the
National and Commonwealth Heritage Lists. The processes are similar to those
outlined above in relation to threatened species and ecological communities.
The proposed changes follow the same theme-based process outlined above for the
listing of threatened species and ecological communities. Labor and
Australian Greens Senators believe the changes expose the process
to even greater politicisation and undermine the integrity of the lists.
1.70
WWF-Australia raised several concerns:
Again, the Minister will be afforded unprecedented discretion
over the listing process, by constraining public nominations into themes,
rather than considering the heritage status of the place being nominated.
Furthermore, 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. Nominations that are not included on the priority list, while being
eligible for inclusion in the annual cycle of subsequent years, have the
potential to be repeatedly excluded from consideration. There is no requirement
for assessment of any publicly nominated place, nor are there any final
statutory deadlines applying to nominations that are not on the priority list. This
will enable the Minister to indefinitely delay the assessment of politically
contentious nominations.[45]
1.71
Similarly, the National Trust of Australia (WA) stated
that:
The extensive powers of the Minister in determining hat can be
assessed could further erode the recognition of National Heritage Values in
their own right; and strengthens the capacity of competing interests such as
economic values to be a determining factor in what is to be assessed. The
capacity of the Minister to defer indefinitely a decision to list adds a new
level of uncertainty to the process. Neither are conducive to good governance,
transparency and accountability.[46]
1.72
Submissions raised concerns regarding the inadequate
separation of assessment and management considerations in heritage listing
procedures. Australia ICOMOS stated that:
[a] primary concern with the amendments is that they provide an
inadequate separation between the process of assessment and listing and the
consideration of downstream management decisions. The Minister has the power to
add to or remove any place from the Priority Assessment List, after assessment
by the AHC, having 'regard to any matters the Minister considers appropriate'
(s.324JE(3))....the listing should be based solely on the assessment of the
National Heritage values of a place.[47]
Register of the National Estate
1.73
Concerns were expressed at the proposed demise of the Register
of the National Estate. The bBill
amends the Australian Heritage Council Act 2003 to repeal the Register
of the National Estate (RNE), and removes the obligation in s.391A of the EPBC
Act for the Minister to have regard to the RNE when making decisions.
1.74
Submissions argued that the Register constitutes a unique
and valuable collection of heritage data, including natural, cultural and Indigenous
places in both public and private ownership.
1.75
Australia ICOMOS expressed concerns that the amendments
ignore the role played by the RNE in State and local government processes, and
potentially put at jeopardy heritage places that have not as yet been formally
entered into State or local government registers and lists.
State and local government processes currently apply to both
registered places and places in the RNE when considering the impacts of
proposals on heritage. The five year delayed implementation
period is, we anticipate, insufficient to enable the States and local
government to upgrade their registers and lists to give adequate protection to
all of those places currently protected by reference to their RNE status under
the EPBC Act.[48]
1.76
Australia ICOMOS argued that the RNE still has a
substantial value at the State and local levels – 'as the RNE was a creation of
the Commonwealth and was actively embedded in the processes of the States and
local governments, we believe the Commonwealth has an obligation to ensure that
no heritage place is put at risk and no community valuing a heritage place is
dis-empowered by amendments to the Act'.[49]
1.77
The ACT Heritage Council highlighted the effect that the
abolition of the Register will have in the ACT arguing that there will be no
formal recognition or protection of many iconic places on national/designated
land in the ACT.[50]
1.78
As in so many other instances,
when faced with obvious weaknesses in the bill or with comprehensive
professional condemnation of specific provisions
government Senators preferred unsupported assertion to considered evidence. A
case in point is the throw-away sumumary
found at 5.685 of the
Chair’s Report that deals with the expanded and
unfettered powers to be bestowed on the Minister in
the listing and approval ofd threatened species
and heritage sites.
1.79
The provisions of this bill dramatically weaken the
processes and the instruments of heritage management and protection in Australia. This
bill jettisons important heritage
management assets such as the RNE,
imposes new listing provisions that are vague
and capable of manipulation, establishes an
approvals process of dubious value and bestows unprecedented
discretion on the Minister in
managing the listing process.
1.80
Inadequate separation between
processes of listing and later decisions on
management has the capacity to
inflict long term damage on heritage management and the protection of heritage
sites. The long term implications of the legislative
changes to heritage management that are contained in this legislation are not
well understood and it is clear that little, or no, analysis of longer term
impacts hasve not
been undertaken by the Department or considered by the Minister.
1.81
In this respect, the new power of the
Minister to add or removes any site from the priority a Assessmentassessment
list having regard to ' “any
matters the Minister considers
appropriate'” is a
markedly retrograde decision. The decision to abandons the
principalel
that listing should be based on independent evaluation applying
an assessment of the national heritage values of the site.
1.82
It is a matter of
regret to all Labor and
Australian Greens Senators that this
ill-considered, hastily rushed-through legislation has the capacity to cause
considerable damage to irreplaceable
heritage sites.
Conclusion
1.83
The Environment and Heritage Legislation Amendment Bill
(No.1) 2006 represents a significant roll-back of the Environment Protection
and Biodiversity Conservation Act 1999. The bill proposes sweeping
changes to Australia's environmental and heritage laws and represents a further
retreat by the Commonwealth away from effective national responsibility for
environmental and heritage protection.
1.84
The bBill
fails to address Australia’s greatest environmental
challenge, climate change. The bBill
represents a lost opportunity to create a climate change trigger in the EPBC
Act, which would ensure that large scale greenhouse polluting projects are
assessed by the Federal Government.
1.85
The bill provides greatly enhanced discretionary power to
the Minister, reduces transparency and accountability, and further politicises
the threatened species and heritage listing processes. The proposed amendments
will seriously compromise the long-term protection of our natural and historic
heritage.
1.86
Labor and Australian Greens Senators will
seek to amend the legislation so that Australia's important biodiversity and
heritage values are protected and enhanced.
Senator Kim Carr
Senator for Victoria |
Senator Ruth Webber
Senator for Western Australia |
| |
|
Senator Dana Wortley
Senator for South Australia |
Senator Kate Lundy
Senator for the ACT |
| |
|
Senator Rachel Siewert
Australian Greens Senator for Western Australia |
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