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Thursday, 5 December 2013
Page: 1823


Mr BUTLER (Port Adelaide) (16:20): As I was finishing my remarks before question time, I indicated that Labor will support schedule 2 of the bill. We are pleased with a number of the elements with the Turtle and Dugong Plan. They piggyback on and extend a range of things that former minister, Mr Burke, put in place with local Indigenous communities and, in spite of some of the reservations I indicated around the apparent cessation of the work that the Turtle and Dugong Taskforce was doing around the framework on illegal poaching and hunting, we would support schedule 2. However, we will not be supporting the provisions in schedule 1 of the bill, and I foreshadow that I will be moving during consideration in detail an amendment to omit schedule 1.

The proposed amendment in schedule 1 looks on its face to be a modest one, but in our view goes to the heart of the biodiversity conservation provisions of the EPBC Act. The framework on biodiversity conservation in this act, an act put in place by former environment minister Robert Hill, is set out largely in chapter 5 of the act. It is a very important part of our environmental protection provisions. It provides a number of elements. The first is to ensure that the parliament and the broader community are well informed about the state of Australia's biodiversity through a range of survey and other work that is done by our agencies and, in many cases, by non-government agencies that are doing wonderful work in the electorates of all members.

The second part of the framework is to compile a list of threatened species and ecological communities—for the purposes of this bill, I think species are particularly important—based on good scientific advice from the Threatened Species Scientific Committee, which will map and provide expert reports on the position of particular species referred to the committee.

The third element of the framework is to provide certain protections to threatened species. The species might be vulnerable, endangered or—in some very concerning cases—critically endangered. These protections often go to things such as the enforcement of penalties against hunting threatened species and suchlike, and protections are often extended to a range of other species, such as migratory species and a range of marine species.

The fourth element of the framework is to ensure that formal advice be prepared by proper authorities, overseen by the department, to ensure that government and the broader community—including the private sector—act in a way that is best designed to preserve and assist the recovery of threatened species. This provision, particularly, is affected by schedule 1 of the bill.

Section 226(b) of the EPBC Act, as it stands without amendment, provides that conservation advice be prepared on every threatened species and that the advice include information about what can be done to stop the decline or support the recovery of a species. A minister can also decide to ask that a recovery plan to support proactive action on the recovery of a species be put in place. It is this conservation advice that is the subject of schedule 1 of the bill.

The provisions relevant to the amending bill are in section 139 of the EPBC Act, which sets out conditions on the basis of which a minister can approve a controlled action—usually a development, whether it is a mine or some other type of development—that has the potential to impact on the environment. One condition of approval being granted by a minister is that the minister must have regard to approved conservation advice if the development has the potential to make a significant impact on a particular threatened species.

It would appear that this bill has its origins in a decision of the Federal Court earlier this year which invalidated a decision of the former environment minister on the basis that the department at the time did not provide the conservation advice that had been prepared for the Tasmanian devil, which is a listed threatened species. It is very clear from the decision, which is in the public realm, that the minister took deep account of the position—and this position is, I think, well known to all members all members of this House to be precarious—of the Tasmanian devil in Tasmania. It is clear that he took deep account of the issues and imposed a range of conditions on the development which would ensure that the development was sensitive to the position of the Tasmanian devil. But the Federal Court decided as a matter of technicality that the fact that the department had not provided a hard copy of the conservation advice to the minister along with the broad report on the development invalidated the minister's decision.

This is obviously a quite straightforward technicality to remedy. After that Federal Court decision—while I was minister for the environment, for example—it was a requirement that every relevant conservation advice thenceforth be provided in hard copy to me as part of a report, and I imagine that the practice is continuing under the new minister. I think that this practice is quite sufficient to deal with the deficiency which was identified by the Federal Court decision. The amendment bill, however, takes a sledgehammer to cracking this particular nut: I am quite convinced that the department's changes to practice have dealt with the Federal Court decision, but the bill removes any legal recourse from section 139 of the EPBC Act. The bill essentially provides that a failure to provide conservation advice will no longer be challengeable in a court of law.

In Labor's view, the capacity of a non-government party, usually a non-governmental organisation, which can show that it has a relevant interest in a matter to challenge a legal decision before a court of law—the relevant interest being ultimately determined by a judge of the court—is an incredibly important pillar of our system of government. The capacity of members of civil society, if they can show locus standi, to go before a court and challenge a decision of government is an incredibly important pillar of our system of government. It is sometimes deeply inconvenient, as new ministers of the government will find out, and it can be embarrassing from time to time, but such are the ups and downs of a vigorous democracy. It has happened to all of us who have held executive positions in this system of government.

The obligation to consider a conservation advice will remain if the bill is passed, but the accountability to the community through the courts will be removed. For the life of me I cannot see the good purpose in this. Even considered as a stand-alone provision, schedule 1 of the bill would not be supported by the opposition. We would not support this amendment; it is sledgehammer to crack a nut. Departmental practices have changed so that they are more than sufficient to deal with a Federal Court action.

But we are particularly concerned about the bill when it is viewed against the background of the policy the government has started to implement of handing over approval powers under the EPBC Act to state governments—first of all, the Queensland government—to protect matters of national environmental significance. The Labor Party opposes this policy position, and we oppose it because we take the view that the national government, whether it be Liberal, Labor, LNP—it does not matter which—or even the National Party, one day maybe, Parliamentary Secretary—

Mr McCormack: Hear, hear!

Mr BUTLER: Whoever it is, it is the national government's responsibility to protect matters of national environmental significance. Provision 1 of the bill is a particular double whammy when viewed against the background of the policy decisions of this government by which the environmental approval powers would be placed in the hands of a state government such as the Newman government—which, in our view, has a very poor record on environmental protection.

We will not be supporting schedule 1 of the bill. I must say that I confess to still not understanding why schedules 1 and 2 have been put together in one bill. We are happy to support the turtle and dugong protection elements of the bill, but will not be supporting schedule 1. I foreshadow that, during consideration in detail, I will be moving an amendment to omit schedule 1 of the bill. In our view, it is important that debate on this bill take place against the backdrop of this government's decision to hand over the environmental approval powers to some state governments. (Time expired)