MEAD, Mr Shane, Member, Executive Committee, Australian Environment and Planning Law Group, Law Council of Australia

[12:15]

CHAIR: Thank you, Mr Mead, for talking to us today. The committee has received your submission as submission 33. Do you wish to make any amendments or alterations to your submission?

Mr Mead : No.

CHAIR: Do you wish to make a brief opening statement before we go to questions?

Mr Mead : Yes, thank you.

CHAIR: As I have said to everyone, keep it concise, thanks.

Mr Mead : I will do my best. I acknowledge the traditional custodians of the land on which we meet and pay my respects to their elders both past and present. On behalf of the Law Council of Australia, I thank the committee for the opportunity to participate in this public hearing. I appear and represent the Law Council as a member of the executive of the Australian Environment and Planning Law Group, which is part of the Law Council's legal practice section.

The Law Council was established in 1933 and represents 16 Australian state and territory law societies and bar associations and the Large Law Firm Group, which are known collectively as the council's constituent bodies. The Law Council of Australia is the national representative body of the Australian legal profession and through its constituent bodies represents about 60,000 legal practitioners nationwide.

The Australian Environmental and Planning Law Group drafted the submission which was lodged by the Law Council to this inquiry. The submission supports the bill as representing an appropriate form of regulatory protection for an important World Heritage area and as a response to both the concerns of the World Heritage Committee expressed in 2011 about the conservation of the outstanding universal value of the Great Barrier Reef World Heritage area and the recommendations made by the UNESCO World Heritage Centre and the International Union for the Conservation of Nature in their 2012 reactive monitoring mission report.

The Law Council has a firm policy that expects governments will comply with their international legal obligations. The policy statement from the Law Council is that states must comply with their international legal obligations whether created by treaty or arising under customary international law. The Law Council supports the proposed amendments on the basis that legislation rather than policy and other executive decisions will better enable Australia to honour its international legal obligations. Australia's obligations under the World Heritage convention to lawfully protect World Heritage areas within our jurisdiction warrants the enactment of the proposed bill.

The Law Council notes that as part of that strategic assessment the Australian government has agreed to commission an independent review of the respective management effectiveness of the Queensland government's coastal planning framework and the Great Barrier Reef Marine Park Authority's Management arrangements. The assessment will consider the effectiveness of existing legislation, policies, plans, programs, environmental assessment processes and planning tools for protecting the outstanding universal value of the Great Barrier Reef and will manage adjacent areas of the Queensland coastal zone. But while that strategic assessment is underway proposed developments in the Great Barrier Reef World Heritage area will continue to be assessed under the existing regime. The Environment Protection and Biodiversity Conservation Act does not currently provide sufficient explicit requirements in relation to World Heritage values to preclude approvals outside existing development footprints. In conclusion, the Law Council's submission notes the correlation between the recommendations made in the reactive monitoring report and the provisions of this bill.

CHAIR: The QRC have said that supporters of this bill have been 'solely driven by a political, antiresources agenda', that it is a 'populist or emotive reaction' and that it is 'emotive ideology'. When they said this, I immediately thought of the Law Council. I think you are the first ideologue with a dickie board that has appeared before me at a Senate inquiry. What do you think of what I think is their emotive reaction to people who support the bill, and do you fit any of these descriptions by the QRC in your organisation?

Mr Mead : The Law Council does not. As a group we put submissions to Law Council. Those submissions are vetted carefully. We cannot make submissions based on policy. Our submissions deal specifically—and will not be entertaining—with limiting ourselves to the legislation and the rule of law.

CHAIR: You may have heard some discussion with previous witnesses on the net benefit test. It seems to me that the net benefit test is one that one environmental group and the QRC and the other business groups have said there is a problem with. Do you see any problem with the proposed net benefit test?

Mr Mead : I have noted your questions to other witnesses and I do have a response in relation to net benefit, but I would like to seek the opportunity to take the question on notice and provide a written response.

CHAIR: That is entirely your prerogative. I have no problem with that, whatsoever.

Mr Mead : The answers I have heard this morning—I have not been here all morning—I did not feel were responsive to your questions. What you can gather from the submissions you have received is that both developers and conservationists have concerns about the net benefit test. However, in relation to environmental law and policy, the committee needs to be aware that the reference to net benefit is consistent with the Commonwealth environmental policy and that offsets and net benefit are policy concepts that are becoming well established in the states and territories and overseas. In October 2012, the Australian government issued environmental offset policies for the Environment Protection and Biodiversity Conservation Act, so it is not a new concept; it just does not seem to have overwhelming support from either camp. You asked another witness for some examples. There are net benefits and offsets used by the state government in Western Australia in relation to natural resource management. It is also used in Victoria in relation to native vegetation management. As I say, I feel that, if I can provide a written response, that might be more helpful.

Senator MOORE: I would really like to know how long these have been in place. In your written response, it would be good if we could get some idea of how long these kinds of things have been in place and how they are being received, if there has been any review. You did say that this is becoming a more common process, and I would just like to have some indication of over what period.

CHAIR: Just to assist you, Mr Mead, I might deal with a little technical issue with the committee here, so that you are aware of the timing. I will get somebody to move that answers to questions on notice be returned by close of business on Thursday, 30 May, and that we accept any tabled documents from today's session. Can somebody move that now?

Senator SINGH: I so move.

CHAIR: As there are no objections, I declare it carried. Mr Mead, that now gives you a clear understanding that you have to get back to us by 30 May with that response.

Mr Mead : Thank you.

Senator WATERS: Thank you, Mr Mead, for your presence here today, for your submission and indeed for your support of the bill. I want to take you first of all to World Heritage Committee recommendation 8, since we are on the issue of net benefit. For the record, I will read that out, in case you do not have it in front of you:

8. Recommends the State Party—

which is of course Australia—

in collaboration with its partners, to sustain and increase its efforts and available resources to conserve the property—

being the reef—

and to develop and adopt clearly defined and scientifically justified targets for improving its state of conservation and enhancing its resilience, and ensure that plans, policies and development proposals affecting the property demonstrate a positive contribution to the achievement of those targets, and an overall net benefit to the protection of Outstanding Universal Value …

You will no doubt have read section 24G of the bill, which is intended to be reflective of that World Heritage Committee recommendation. Can I get you to turn your mind to whether you think that 24G is a reflection of the sentiments of recommendation 8 or if there are some improvements that need to be made in that respect?

Mr Mead : Unfortunately I cannot give much assistance, because recommendation 8, in my reading, is the precautionary principle, and in our submission you will note that we believe that 24G is consistent with recommendation 7. The document you are looking at appears to be different to the document I am looking at. I am wondering if we are looking at the mission report rather than the World Heritage Committee document.

Senator WATERS: No. I have got decision 36COM 7B.8, the decision from 2012. I am not talking about the 2013 draft decision that was just released two weeks ago. I was referring there to the finalised adopted recommendations made in 2012.

Mr Mead : These are ones that were made at the same time as the adoption of the retrospective statements of outstanding universal value?

Senator WATERS: I do not know what you are referring to there. Is it useful if I pass you a copy of recommendation 8?

Mr Mead : No. I think I have it.

CHAIR: Rather than putting Mr Mead in a position where he has got to respond to a detailed question and he does not have the documents before him, maybe that is another issue he could take the notice.

Senator WATERS: Sure. I am happy with that, Mr Mead, if you could just reflect on the World Heritage Committee's statements about net benefit and the context in which they place those comments. I really would welcome any suggestions that you have got to tighten 24G, if your view is that it needs to better reflect what the World Heritage Committee said. Thank you for that response on notice. Can you give us a summary of what the World Heritage Committee recommended in regard to port developments?

Mr Mead : Again, I am not sure that I can be of any assistance, other than what is in the printed material from the World Heritage Committee. It seems to me—and I am not belittling what other witnesses have said—that initially there was extreme concern; there now seems to be great concern. I note that, at the same session, the retrospective statements of outstanding universal value were adopted and the Australian government was commended for its efforts in putting those forward. Again, I am not in a position to say what the impact of that will be on the EPBC Act, but it seems that that in itself was a positive step in relation to the concerns that the World Heritage Committee holds.

Senator WATERS: Mr Mead, have you had an opportunity to read the draft World Heritage Committee decision released overnight our time between 3 and 4 May—the one that will be put to the World Heritage Committee meeting in June in Cambodia?

Mr Mead : No, I have not.

Senator WATERS: We will leave that then. I want to take you to the contention made by the Queensland government in their submission that this bill, to verbal them, seems to have been plucked out of thin air and does not bear any relationship to the World Heritage Committee’s recommendations. Was I being too kind?

Senator Moore interjecting—

Senator WATERS: Thank you, Senator Moore; apparently I am not being too kind to the Queensland government with that summation. Could you reflect on whether or not this bill reflects the World Heritage Committee’s recommendation and, indeed, why it is that the Law Council supported the bill in your submission to this inquiry.

Mr Mead : I will answer the question in the reverse order of which it was asked. The bill is supported for three primary reasons: firstly, we say that the federal government should honour its international obligations; secondly, we believe a legislative response is to be preferred over a policy response; thirdly, we believe that the bill is an appropriate form of regulatory protection. The Law Council is not making any statement as to policy or even going so far as to say that this bill is the best way to respond, but we do say that it is an appropriate form of regulatory protection. At page 6 of our submission we enumerate why we believe the bill responds to the recommendations of the committee.

Senator WATERS: Can you tell us why it is that this bill needs to exist at all? The Queensland Resources Council contend that federal laws currently are stringent, that they are rigorous, that they are fine, that there is not a problem here. Could you explain why it is that the World Heritage Committee had extreme concern about current laws and your view on whether the current federal laws are adequate to protect the reef from these threats of new ports?

Mr Mead : I am afraid I cannot. I was not sure that the committee in fact had concerns about our laws. I think their concerns were about the level of development that appears to have occurred in fairly recent times—perhaps only as far back as five years ago. I cannot pre-empt what the committee may or may not do. They may in fact be satisfied with the Australian government’s response without any amendment to the EPBC Act; I do not know.

Senator WATERS: I might point out that the draft decision a few weeks ago notes with dismay the limited progress of the state and federal governments have made, so I suspect that they are not quite as contented with the current laws and the current response, but, yes, we will see when the committee meets in June.

Mr Mead : I have not seen that draft, and also I do not know whether their dismay is with progress on the assessment or whether it is in relation to the legislation.

Senator WATERS: It is with progress in relation to the adoption of the recommendations that this bill would legislate.

CHAIR: As we have no further questions, thank you very much, Mr Mead. You have been very helpful. Thank you for taking those questions on notice.

Mr Mead : I apologise for not being entertaining.

CHAIR: We cannot have everyone being entertaining, Mr Mead!