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Thursday, 26 March 1987
Page: 1362

Senator SHORT(10.41) —I very strongly support the coalition's total opposition to the Lemonthyme and Southern Forests (Commission of Inquiry) Bill presently being debated in the Senate. I do so for a variety of reasons that I will make clear during my remarks. I say at the outset that I am a senator from Victoria. One may say-it has been said-that this is only a Tasmanian issue, but the point is that this is not just a Tasmanian issue. If one accepts the principle behind this Bill, that means accepting a principle that goes to the very heart of the issue of the rights of States within a federation such as ours. There is a fundamental issue of States rights involved here. Each and every Australian ought to be aware of that and very concerned about it.

I want to make three main points. Firstly, this legislation is an example of the Hawke Government just tearing up previous firm agreements in the name of total cynical political opportunism. Secondly, this Bill sets a precedent such that the Government can call on the foreign affairs power to push through changes regardless of the wishes and desires of most Australians and, as I say, to trample over the rights of individual States-and in this case the legislation is against the wishes of the overwhelming majority of Tasmanians, including the Opposition Labor Party in Tasmania. Thirdly, the legislation does not reflect a balanced and considered view regarding conservation. Instead, it reflects this Government's insatiable propensity to appease radical minorities in our community.

The decision behind the introduction of this legislation is a reversal of the Government's earlier decision to accept the recommendations of the management plan of the Tasmanian Forestry Commission that logging in the Lemonthyme be permitted. The purpose of the legislation is, of course, to provide for the establishment of yet another commission of inquiry to report on matters relating to the Lemonthyme and Southern Forests areas in Tasmania. The inquiry would examine whether the two areas are or include areas which are of world heritage value or which contribute to the value of a world heritage area. The inquiry would also report on whether there are other areas in Tasmania with forestry resources that are capable of exploitation. The Bill also provides for the interim protection of the two areas during the inquiry. By `interim protection' is meant a complete halt to forestry operations in those areas.

The decision behind this legislation is clearly evident from the Government's earlier stance in its being a signatory to the 1986 memorandum of understanding. Although short-lived, that memorandum of understanding was a firm and binding agreement arrived at by the Commonwealth and the State Government, and it stated:

. . . forest operations in the Lemonthyme will be in accordance with the Management Plan for the Lemonthyme State Forest.

In recent weeks, Senator Walsh reiterated his Government's decision on that point when he said:

. . . the Federal Government does not propose to limit logging in the area beyond those limits already proposed in the Tasmanian Forestry Commission's Management Plan.

The extensive purpose of the legislation under debate today is, as I have said, to set up an inquiry to justify the Government's change of heart, the Government's breaking of firm and binding commitments in relation to the future activities in these areas. The probability is that the inquiry would confirm the Government's new-found change of heart. The Government says its rationale is to establish the facts. I will come back to some of those facts later. The important fact is that the facts of this situation have been clearly established for a lengthy period now and that this inquiry is to be the latest in a series of inquiries into the issue. There have already been nine inquiries into this issue. It is remarkable, and it supports the view that the outcome is stacked in favour of the radical conservationists in our community, not the responsible and objective conservationists.

The legislation is a classic example of the new-found enthusiasm of this Prime Minister (Mr Hawke) and his advisers to try to capture the so-called greenie vote. The whole exercise has been masterminded by Senator Graham Richardson, the Prime Minister's political guru. No one who knows Senator Richardson could, by any stretch of the imagination, call him a conservationist. Instead, towards the end of last year some market research by the Australian Labor Party found that it could perhaps win a few votes from particularly the young people if it suddenly embraced the issue of conservation. Therefore, overnight, Senator Richardson became an instant conservationist, and he managed to persuade the Prime Minister to attempt to do the same. Now, as Senator Collard said in his initial remarks in this debate, we have a Prime Minister who is a born-again greenie. That was shown during the Prime Minister's totally cynical pilgrimage to Kakadu towards the end of last year.

While he was doing that, or shortly after, Senator Richardson laid the groundwork in Tasmania to build a conservation issue there around the Lemonthyme and Southern Forests issue, and this whole exercise, this present legislation, has grown entirely out of the opportunism as seen by Senator Richardson, the Prime Minister and their mates to try to win a few votes. It goes completely against the responsible attitude taken in the Hawke Government by responsible Ministers such as Mr Kerin and others. The Prime Minister's voyage of discovery to Kakadu National Park last year was the epitome of the kind of desperate reaction that this Hawke Go-vernment has resorted to, to placate also the radical Left within its Party.

Overall, one would have expected that after nine inquiries the matter would have been settled. Indeed, the latest management plan agreed to by the Government, prepared after full public consultation, with proper provision for visual and landscape, botanical and archaeological va-lues, seemed to have settled the issue. But no, the issue has not been settled; it has not been allowed to be settled to the satisfaction of the Tasmanian people, their Government and all those who were involved in the management plan of the Tasmanian Forestry Commission. After 21/2 years some $1.3m has been spent investigating the very same issues that this legislation is about. In other words, this legislation seeks to re-invent the wheel but it seeks to do it in a way that provides a different final shape for it. The re-invention of the wheel into a different shape can lead to some very bumpy results and inevitably that will be the effect and impact of this legislation on the Hawke Government. It will catapult on it dreadfully, and correctly so.

This Bill implies that the independent consultant's report to the Australian Heritage Commission was bunkum. It implies that the investigations, including the impact of forestry activities in wilderness areas in Tasmania, are irrelevant. It completely rejects the findings of that Commission that there were no prudently feasible alternatives on economic and environment grounds. This legislation is no more than a cynical breach of an earlier commitment by the Hawke Government not to prevent logging in the Lemonthyme. The legislation is nothing more than the blatant and naked pursuit of the votes of the radical and unreasonable conservationists. Proponents of the legislation have argued that their concern lies in their belief that these forests need to be protected to provide buffer zones to protect the already existing world heritage area.

Senator Newman —That is not true.

Senator SHORT —Senator Newman is totally correct. The fallacy of this view is simply that the obligations of the Commonwealth under the World Heritage Convention are already being met. World heritage areas already have the appropriate boundaries. The Commonwealth, in its report to the World Heritage Commission, acknowledged that fact.

Senator Coates —You shouldn't mind what the inquiry says then.

Senator SHORT —Why have an inquiry? All of these matters have been established beyond dispute over a lengthy period. There have been nine inquiries into this matter so why does the Government want to set up yet another inquiry unless it thinks that it can manipulate it in such a way that it will produce a result different from earlier conclusions? The only reason why the Government is breaking firm and binding agreements that Senator Coates's Government had given to the Tasmanian Government and the Tasmanian people is that it is in a greedy and grubby grab for cynically motivated votes. The honourable senator knows that as well as I do; he knows it as well as the people of Australia know it.

Supporters of this legislation have accused members of the Opposition of being Philistines on conservation. Nothing could be further from the truth and the facts of the last few years demonstrate that very clearly. Those who have debated the merits of this legislation have clearly done so not from an appreciation of its history but under the direction of the political strategists of the Australian Labor Party. As I have said, the ALP considers that it is losing the greenie vote and that this issue provides the perfect opportunity to capture it. The Opposition has an extraordinarily good record on conservation issues. After all it was those on this side of the chamber who were responsible for the national conservation strategy for Australia. It was under the previous Government that the Kakadu National Park was established. It is ludicrous that the ALP Government can now think that it can con people into believing that the Opposition is anti-conservationist. It is absolute nonsense. On the contrary, what we are opposed to is preservationists who simply want to lock away areas of Australia and throw away the key. A key assumption of the radical conservationists is that they reject the positive aspects of development. One cannot have a real appreciation of the environment without coupling it with a positive appreciation of development.

Our opposition to this legislation comes from our position as people who wish to see sensible responsible development coupled with sensible and responsible conservation and the two are not mutually exclusive. The record of the activities of Tasmanian foresters shows that they are determined to carry out their operations on a sustainable yield basis, that is, logging takes place alongside replanting and only in limited areas. It would be self-defeating for foresters to deplete the forests; there is no economic rationale for them to do so.

I turn to the foreign affairs power that is being invoked in this matter and that is really what is happening. It has already been evoked on a range of conservation issues. It is beyond debate that it is good that we have in our Constitution a facility to protect regions within Australia's boundaries from destruction in line with our obligations under the international treaties to which we are signatory. Indeed, we have used that foreign affairs power on several occasions in the past-in the Antarctic in the case of marine pollution and marine life and in other ways. It was only in the case of the Franklin Dam, prior to this case, that this power was invoked to circumvent the Australian Constitution. That is what happened in the case of the Franklin Dam and that is what is happening here. The Government is using the foreign affairs power to circumvent the Australian Constitution.

Senator Coates —That is not what the High Court says.

Senator SHORT —It is using it to override the right of State governments to decide on land usage in their States. The Opposition has stood firm on its commitment against invocation of the foreign affairs power with regard to land use. Land use is a matter for the respective States to decide. If the Hawke Government wants to alter the existing arrangement it should take the matter to the people; it should hold a referendum. Instead, why is it trying to bludgeon through legislation in this Parliament which is absolutely contrary to everything it has said in the past in relation to the Lemonthyme and Southern Forests areas? Why, if it really believes the strength and rightness of its cause, does it not take the matter to the Australian people in the form of a referendum rather than try to prostitute the Australian Constitution? By going down the track of appealing to the foreign affairs powers in the Constitution this Government is embarking on a very dangerous course. Circumvention of the Constitution can never be condoned and for the Government to continue in a shameless way to do so is worth the greatest criticism and the very greatest concern one could have about this Government.

The Opposition's criticism of the current legislation is not simply that it seeks to discover whether these two forests can be properly classified as either of cultural or natural heritage, in which case they would be protected under the World Heritage Properties Conservation Act 1983. On the contrary, we believe that this issue has already been decided by the nine previous inquiries and the Tasmanian Forestry Commission's management plan. Our concern about this legislation is that it is really the outcome of a group of individuals who cannot come to terms with the views and decisions that have been arrived at after lengthy and often open public discussion. Rather than reflect a balanced and considered view regarding conservation, this Bill reflects this Government's appalling record of setting out to appease radical minorities. When one looks at the history of the legislation it becomes clear who has been influential in getting it this far. It is groups such as the Australian Conservation Foundation and the Tasmanian Wilderness Society which were instrumental in having the two forests nominated for inclusion on the Register of the National Estate and, in turn, the Heritage Commission which is responsible for evaluating such things. It employed members of the Wilderness Society and the ACF to carry out the evaluations. What objectivity can one possibly see in that? It was a rigged deal right from day one.

This legislation is the very thin edge of the wedge. Its passage-it will be passed because the ill-considered, ill-thinking and gutless Australian Democrats will support it in the Senate-will be a signal that anyone, typically those who lean in a Luddite direction, who cares to go through the hassle of hammering away at the Heritage Commission, holding picket lines, organising to form political pressure groups and extracting public funds from weak governments, regardless of the merits of the particular case, will be successful. That is what the passage of this legislation will show. It will demonstrate that no part of Australia is sacred and that no part is free from the ravages of politically active minority groups who are against a fair and democratic private enterprise political system. The passage of this legislation will give the green light to those in the small minority to pursue their crazy programs of freeing Australia from what they perceive to be the dehumanising activities of foresters. Looking at the history of forestry in this nation of ours, particularly in Tasmania, I think it is undeniable that the foresters of this nation have done great and responsible service to the development of our living standards and to the preservation of the environment in a very balanced way.

Turning to another aspect of this subject, the Senate should not lose sight of the views put to it in the last day or so by our very important Standing Committee for the Scrutiny of Bills. That Committee has looked at various aspects of this legislation-I will go into all the details of the legislation; that can come up in debate at the Committee stage-but there are two particular parts of the Bill to which the Scrutiny of Bills Committee has drawn particular attention. They are clause 13, on self-incrimination, and clause 14 (c) on entry and inspection. I would like to read into the Senate record some of the things that that Committee has said and the response that the Minister has given to the Committee's condemnations in the last 24 hours or so. On clause 13, on self-incrimination the Committee states:

. . . provides for the application of the Royal Commissions Act of 1902 in relation to the inquiry with certain specified modifications. One section of that Act so applied, and not modified, is section 6a, which provides that self incrimination is not to be an excuse for the refusal or failure to produce a document or to answer questions as required by the Commission. Section 6dd further provides that a statement or disclosure made by a witness in giving evidence is not admissible against the witness in subsequent civil or criminal proceedings.

The Committee has been critical of such provisions which remove the right to refuse to answer questions or produce documents on the grounds of self incrimination-

but which, at the same time-

. . . confer protection in subsequent proceedings only in respect of the use of the actual answer given or document produced. In the view of the Committee the protection should extend to any information or thing obtained as a direct or indirect consequence of the giving of the answer or the production of the document.

The Scrutiny of Bills Committee therefore drew clause 13 to the attention of the Senate by pointing out that:

. . . by so applying sections 6a and 6dd of the Royal Commissions Act 1902 without modification it might be considered to trespass unduly on personal rights and liberties.

That matter has been drawn to the attention of the Minister for Arts, Heritage and Environment (Mr Cohen), and he has responded in the following terms:

Rather than create a completely new set of machinery provisions for the Commission, the approach adopted in the Bill is to apply the provisions of the Royal Commissions Act 1902 with only those changes which are necessary to enable the Commission to operate satisfactorily. It is likely that there may be provisions of the Royal Commissions Act, as applied, which will not be used by the Commission of Inquiry, e.g. sections 6p, 7a, 7b and 7c. It is considered that, although possible, it is unlikely that any question of self-incrimination would arise, given the terms of reference of the Commission, (i.e. an inquiry into the existence of world heritage areas and alternatives to forestry operations in those areas).

The Scrutiny of Bills Committee has looked at that response and it has, I think too politely, thanked the Minister for his response. It has then gone on to comment in the most pertinent and telling way on that response. The Committee said:

However, if it is considered unlikely that the question of self incrimination will arise, given the nature of the Commission's inquiry, then in the Committee's view the protection from self incrimination available at common law should not be removed at all.

It then makes the very important point that:

The right to refuse to give answers to questions where this may result in a person being required to incriminate himself or herself is one of the most important protections available at common law and it should not be removed lightly.

It goes on to say:

The Committee has reluctantly recognised the need for its removal in certain circumstances and has, as indicated above, sought the broadest possible protection for those required to give answers which may be self-incriminating. The Minister's response suggests, however, that the present Bill has been thrown together in a hasty and slipshod fashion with more concern for ensuring that the Commission is able to operate `satisfactorily' than for the consequences of applying, in a blanket fashion, provisions of the Royal Commissions Act 1902 which may be wholly inappropriate to the nature of the Commission's inquiry.

Senator Newman —It is hasty and it is slipshod.

Senator SHORT —That is absolutely correct, Senator Newman. The Committee concluded:

The Committee therefore continues to draw clause 13 to the attention of the Senate under principle 1 (a) (i)-

that is, principle 1 (a) (i) of its terms of reference, which is to examine whether any legislation brought into this Parliament trespasses unduly on personal rights and liberties-

in that by applying sections of the Royal Commissions Act 1902 removing the privilege against self incrimination to the inquiry it may be considered to trespass unduly on personal rights and liberties.

That is a damning indictment by our own Scrutiny of Bills Committee on that clause of the legislation we are now considering. Clause 14 (c) of the Bill, which deals with entry and inspection, provides that:

. . . for the purposes of performing his or her functions under the Act a member of the Commission of Inquiry or a person authorised in writing for the purpose by a member may, with such assistance, and by such force, as is necessary and reasonable, enter and inspect . . .

This is followed by the various areas nominated in the clause. The Scrutiny of Bills Committee said that this paragraph 14 (c) therefore:

. . . confers on the member or authorised person a broad power to enter upon private land based upon nothing more than the personal opinion of the person exercising the power.

It therefore again drew the attention of the Senate to principle 1 (a) (i) of the Committee's terms of reference to which I have already referred. The Committee draws our attention to that matter in the following terms:

. . . in that by providing such a broad power of entry upon land it might be considered to trespass unduly on personal rights and liberties.

The Minister for Arts, Heritage and Environment, the responsible Minister, has responded to this criticism as well. He said:

There are important qualifications on the power given in paragraph 14 (c). First, the person entering the area must be doing so for the purpose of exercising his or her powers or functions under the Act.

I can only say to that: So what?. He said further:

Secondly, it is only those areas which contain forestry resources which are able to be entered under paragraph 14 (c) i.e. for the purposes of examining those resources-the trees.

I am not too sure whether that is too correct. He goes on to say:

It does not enable entry into premises and it is not a comprehensive power of `search'. Therefore, it is not comparable to the search warrant provisions of the Royal Commissions Act 1902.

In my opinion, the power is necessary to enable the Commission of Inquiry to examine forestry resources which may be alternative to those in the Lemonthyme and Southern Forests areas and report within the one year inquiry period.

Senator Newman —That is on private land.

Senator SHORT —On private land. The Scrutiny of Bills Committee has looked at the Minister's response. It very politely thanked the Minister for his response, and then stated:

Although the power is not a power of search it is undeniably a power to enter on private land and whereas an ordinary Royal Commission may only exercise such a power with the consent of the occupier or pursuant to a warrant, the members of the present Commission may do so on the basis of their personal belief that the land in question may be part of a qualifying area or may contain forestry resources. They are not required to have reasonable grounds for this belief and they are not required to notify the owners of private land before entering it in pursuance of this power.

Therefore, the view of the Scrutiny of Bills Committee remains that this was a very damaging and very dangerous clause of the legislation in relation to personal liberties. You may think, Mr Acting Deputy President, listening to that damning indictment of this legislation, that it is an Opposition ploy. Let me tell you who the members of the Scrutiny of Bills Committee are. The Chairman is Senator Crowley and the other members of the Committee include Senator Haines, Senator Cooney and Senator McKiernan. So there are three members of the Australian Labor Party and one Australian Democrat. There are only two Liberal senators on that Committee. It is a damning indictment.

The ACTING DEPUTY PRESIDENT (Senator Townley) —Order! The honourable senator's time has expired.