Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Environment and Communications References Committee
Effectiveness of threatened species and ecological communities' protection in Australia

BLEYER, Ms Vanessa Elizabeth, President, Lawyers for Forests

HOWARD, Mr Leigh, Vice-President and Chair, YLS Law Reform Committee, Young Lawyers’ Section, Law Institute of Victoria

OLDEN, Ms Leanne, YLS Law Reform Committee member, Young Lawyers' Section, Law Institute of Victoria

TROUP, Ms Rachele Elene, YLS Law Reform Committee member, Young Lawyers' Section, Law Institute of Victoria


CHAIR: I now invite to the table representatives from Lawyers for Forests and the Young Lawyers' Section of the Law Institute of Victoria. I thank you all for talking to us today. We have received your submissions Nos 70 and 84 respectively. Does either organisation wish to make any amendments or alterations to their submissions?

Mr Howard : We have just one. It is on the second page of our submission. On the second page of our submission in the first paragraph the third last line reads: 'committee, the Victorian government should.' That should instead read: 'the Commonwealth government should use its power' rather than 'the Victorian government.'

CHAIR: Thank you, Mr Howard. I invite either or both organisations to make a brief opening statement.

Ms Bleyer : I am happy to make an opening statement on behalf of Lawyers for Forests. You would have noticed from the Lawyers for Forests' submission that it was particularly concerned about recovery plans. Less than 40 per cent of listed threatened species under the EPBC Act have recovery plans. A large proportion of those are endangered species, which causes even greater concern. So more recovery plans should be made. How they are made is something that Lawyers for Forests is concerned about. There should be input and involvement from appropriately qualified experts, and the threatened species should be put first, not the processes that cause their extinction.

Reviewing the recovery plans needs to be properly attended to, particularly following, for example, extreme weather events. There is a prime example at the moment with Victoria's faunal emblem, the Leadbeater's possum. During the fires in February 2009 the population was halved; its habitat has been halved. We now have just about 1,000 left—if 2,000 were not bad enough in the first place. I was lucky enough to act on behalf of a group named MyEnvironment Inc. who went to the Supreme Court. In the course of delivering judgement, the the Hon. Justice Osborn was particularly concerned about the plight of the Leadbeater's possum. He said:

… the evidence called by MyEnvironment demonstrates a strong case for the overall review of the adequacy of the reserve system intended to protect LBP habitat within the Central Highlands Forest Management Area.

It is endemic to the central highlands forest management area. He goes on to say:

The 2009 bushfires have materially changed the circumstances in which the existing system was planned and implemented and there is, on the evidence, an urgent need to review it.

I table that summary delivered by His Honour Justice Osborn.

We could overcome all of the issues with the way in which listed threatened species are protected under the EPBC Act by simply removing section 38 exemption. There are regional forest agreements between the Commonwealth and states and, in Victoria for example, there are a number of them in respect of a number of forest management areas. They are not working. A number of clauses have been breached in a number of them, including in the central highlands regional forest agreement which relates to the habitat of the Leadbeater's possum. There is not very much that the community can do about that, because it is obviously a contract between two parties, and those parties should really be taking steps to enforce clauses that are being breached via the counterparty to the agreement. That does not appear to be happening. If the section 38 exemption is removed, then part 3 of the EPBC Act will apply and the Commonwealth will need to approve logging of threatened species habitat in advance of it occurring.

So, if we are not making recovery plans and if we are not reviewing recovery plans and if recovery plans are not being properly implemented, and we remove section 38, then that is okay because you are going to be properly monitoring the species, the destruction of their habitat and the protection of them on a case-by-case basis, which is what they deserve. This is not about finding an easy fix; this is about finding an easy way to fix the problem. The easy way to fix the problem is to remove section 38 from the EPBC Act.

CHAIR: Thank you. Mr Howard?

Mr Howard : The Young Lawyers thanks the standing committee for the opportunity to give evidence today. Young Lawyers is an organisation comprised of 7,000 practising lawyers across Victoria. Membership of the Young Lawyers comprises lawyers under the age of 36 or those with less than six years practical experience. I appear in my capacity as vice president, together with Ms Leanne Olden and Ms Rachele Troup, members of the Young Lawyers Law Reform Committee.

We have become acutely aware of the issues being considered by this inquiry by virtue of the concern that we hold for Leadbeater's possum. Our submission to this inquiry annexes a letter that we sent to the Victorian Minister for Agriculture and Food Security, the Hon. Peter Walsh. That letter outlines in some detail the regulatory issues faced for the protection of the possum.

We regard the minister's response, which is also annexed, as inadequate and as shirking of responsibility. We are happy to take the inquiry through these letters in more detail.

More generally, we support a regulatory environment that divides this responsibility between federal and state governments in a way that best promotes environmental protection and reduces green tape. In this regard, we wish to make the following four submissions. First, we believe that the development and implementation of the recovery plan should no longer be managed by federal or state ministers and their respective departments. Second, we believe a federal regulator should instead be charged with this responsibility. This federal regulator should be independent of government and comprise expertise from all relevant stakeholders. Using this expertise, it should be able to triage requests for recovery plans, manage the listing of species and be able to respond to new information. This should be in full consultation with stakeholders. All stakeholders should have standing to be able to apply to this regulator to develop or review recovery plans and to air their related grievances. Third, we believe that recovery plans should be enforceable. The regulator should make use of parliamentary drafters to ensure the legal voracity. Fourth, recovery plans must have application across all habitats. To this end, the exclusion of their applicability when a regional forest agreement applies must be removed. In other words, we support Ms Bleyer in her submission that section 38 should be removed. I am able to table this opening response if required.

Senator DI NATALE: I will need to excuse myself shortly, so I appreciate the opportunity to go first. Just to put this into context and maybe plain English, we have a recovery plan for the Leadbeater's possum, and that was established some time ago. We have the Leadbetter's possum on the way to extinction. We have a major event that has intervened since the recovery plan was established—that is, the bushfires, which have wiped out half of the Leadbeater's habitat. What you are suggesting is that the recovery plan has not changed as a result of that major event—something which has a clear and demonstrable impact on the prospects for the Leadbeater's possum.

Ms Olden : It is our understanding that the recovery plan came into force in about 2000 and, despite lobbying by a number of groups, the plan has not changed in light of the 2009 bushfires. Part of our concern arising out of the MyEnvironment case were His Honour's comments that the scope of that proceding meant that he could only address the impact on the Leadbeater's possum in the particular area of forest which was proposed to be logged by VicForests at that time. He was not able to look more broadly at the impacts on the Leadbeater's possum across all its habitat. That is part of the reason that we support the implementation of a new regulator who would have capacity to oversee the entirety of the Leadbeater's possum's habitat and force a review of the recovery plan. I understand that there may have been a draft amended version tabled some time during 2009 or 2011, but no movement has happened on that since then.

Senator DI NATALE: We have, just to put it into simple English: a major event; no change in the recovery plan; just proceeding with business as usual. That seems to be a gaping hole and it is something that has been repeated in other submissions. You are suggesting an independent regulatory body that has the capacity to make sure that these recovery plans are kept up-to-date and enforceable. They are the two essential requirements that you are talking about for this independent regulatory body—is that correct?

Ms Olden : That is correct—yes.

Senator DI NATALE: That seems to me to be a pretty reasonable step. I am satisfied with that.

Senator WATERS: Thanks for your evidence and your submissions. Pardon me for my legal questions, but I think I have the right folk to ask. I am interested in the interaction between the recovery plan and the RFA exemption. How can you have a recovery plan when the very activity that is threatening the critter is exempt from the federal laws? I do not understand how that works.

Ms Bleyer : One of the difficulties with a number of processes under the EPBC Act is that there are a number of consistencies which, when you put them into action, mean that things do not work in the way that they should.

Under the Regional Forest Agreements there are supposed to be reserve systems and, since we are talking about the Leadbeater's possum, under the Leadbeater's possum recovery plan, there is supposed to specifically be a Leadbeater's possum reserve system.

Much of the prior reserve system was burnt in February 2009 and, although it is unclear from the law, I suppose that the Leadbeater's possum reserve should correlate in some way with the CAR reserve system that is supposed to be created in the Regional Forest Agreements but is not necessarily. You could interpret it to require them to marry up but, if these reserve systems were being properly created, then we would need a lot more of them because, despite the fact that large tranches of them were burnt and have not been replaced, there certainly were never enough of them and there are not enough of them now.

Senator WATERS: It sounds like the two instruments are not talking to each other properly and, even in isolation, the reserves under those RFAs are inadequate.

Ms Bleyer : That is right. Under the EPBC Act, there are options that the Commonwealth and the state can take in respect of integrating the recovery plans with the laws of the various states. In respect of the Leadbeater's possum, one of those options does not seem to have been specifically selected and then, obviously, implemented so we have got a recovery plan that says one thing and an action statement that says something else. Neither of the documents are being properly complied with; otherwise, the Leadbeater's possum would not be critically endangered. So long as any logging of the native forest in which it inhabits continues, there is always going to be a problem with the Leadbeater's possum. Under the current legal scheme, no change needs to be made; it needs to be properly implemented and the very small habit that remains for the Leadbeater's possum simply needs to be put into reserves. The appropriately qualified expert to assist the Commonwealth in doing so is Professor David Lindenmayer from the Australian National University.

Senator WATERS: I might touch on the issue of the recovery plan and Professor Lindenmayer's involvement later on. On that point about the lack of review of the recovery plan after the bushfires, is there no provision in the EPBC Act to review recovery plans after significant events? That seems sheer madness to me.

Ms Bleyer : There is no provision.

Senator WATERS: Are there proposals to have such a provision under the Hawke review response by government—I have not looked at that point myself?

Ms Bleyer : From my recollection, the Hawke review supports proper review but did not expressly suggest that section needed to be amended or inserted into the act to allow for it.

Mr Howard : Dr Hawke does not go as far as recommending an independent regulator; he suggested a national commission that was essentially an information-producing body that sat across the scientific committees that already exist under the act. We think that Dr Hawke did not go far enough. Someone needs to be charged with this responsibility to review and develop, because no-one is. It is wholly reliant on the minister at the moment—or ministers, state and federal—and it is not being done.

Ms Bleyer : Dr Hawke suggested an emergency listing process and that would not preclude varying any existing listings to fall within the emergency category. On one view, under the act as it stands, the minister has the discretion to declare areas of forest critical habitat, so what you would expect the outcome to be for an emergency listing can be achieved under the current critical habitat determination provisions.

The minister has never made a critical habitat determination under the act. He was asked by Environment East Gippsland to do so in respect of a number of threatened and endangered species at Brown Mountain in East Gippsland. He failed to make a decision in response to EEG's request and, as a result, Environment East Gippsland went to the Supreme Court. After a long hard-fought piece of litigation, successfully achieved an injunction to restrain VicForests from logging at Brown Mountain because of the number of threatened species that were present in those proposed logging coupes. That could have been avoided had the minister declared Brown Mountain a critical habitat. The findings of the Supreme Court judge in that case showed that, had the minister considered it, he would have had all the elements he needed to determine a critical habitat, so the minister can now determine the remaining Leadbeater's possum habitat a critical habitat so it can be protected.

Senator WATERS: On that point, and please correct me if I am mistaken, my understanding is that critical habitat is not that well protected anyway, even if it is ever declared, and I think there have only been five instances where it has been. Is that correct? If so, should that be fixed?

Ms Bleyer : It should be fixed. The EPBC act does not go far enough to define what critical habitat is, or what you do with that habitat when it is declared to be critical habitat. In Victoria, for example, and it is the same in other cases, there is some correlation between state and federal law. Under the Flora and Fauna Guarantee Act in Victoria there are also some critical habitat provisions. Declarations can be made for conservation orders together with the determination of critical habitat, which ends up meaning that that habitat needs to be protected. Although the critical habitat provisions at the federal level do not go far enough—and it should be made clear that once a critical habitat determination is made the area must be protected from logging—and even if the minister made a decision, it would be helpful because it could be argued to correlate with the states' associated laws and lead to ultimate protection of threatened species and their habitat.

Senator WATERS: I am interested in the level of protection that is provided or could be provided federally under the EPBC act for threatened species when they are in an RFA, given the activities regulated by the RFA are then exempt. How does the act work to protect threatened species in an RFA area? Again, it seems to be in conflict.

Ms Bleyer : That is the problem; if we remove the section 38 exemption then the Commonwealth will be able to exercise a wider range of powers to achieve what it no doubt wants to achieve because that is the purpose of the EPBC act—to stop Australia having the highest level of species facing extinction in the world. The inconsistency between the Regional Forest Agreements and the very purpose of the EPBC act goes to the very heart of why the EPBC act is not working. That inconsistency does not need to be there; we need to remove section 38 and then it will not be there and this will make it easier for threatened species to be removed from the list, which has never happened before. No threatened species has ever recovered under the Commonwealth's EPBC act, and that is what the Commonwealth should be moving towards. It will move towards that only if it stops being involved in a regime specifically designed, in one view, to destroy the habitat in which the threatened species resides.

Senator WATERS: That is clearly what you would like to happen. I want an understanding of how it currently works; how do those two things interact?

Ms Bleyer : They interact by allowing the Commonwealth to turn its back on threatened species in areas of native forest which are scheduled to be logged.

Senator WATERS: So if an action were likely to have a significant impact on a threatened species but that action were logging regulated by the RFA then it would not be a controlled action? Is that correct?

Ms Bleyer : That is right. A referral is not required, so you do not even get to the controlled action decision. The recovery plans and the creation of the reserve systems are supposed to achieve protection for threatened species habitat, but when we do not have recovery plans for more than half of them when they are not being reviewed or properly implemented, when the reserve systems are not being properly created, then it is not working the way it is anyway. It seems to me that the Commonwealth really has not properly embraced the whole recovery plan and reserve system process. What the Commonwealth is very good at is receiving referrals, assessing them and determining whether they are controlled actions—so why does the Commonwealth not keep doing what it is good at, remove the section 38 exemption and allow threatened species to be considered under the area of the act that the Commonwealth is so good at?

Mr Howard : The short answer is they do not interact. RFAs do not interact with the EPBC at all. The RFAs are contracts—their legal status is actually uncertain, but they appear to be contracts between governments. The only people who can act on contracts are parties to the contracts. So we, as private individuals, cannot do anything about it.

Senator WATERS: So there is no public enforcement. What happens when there is a breach?

Mr Howard : Nothing.

Ms Troup : Nothing, and that is what we have seen occurring. There are provisions in the RFAs, for example, to report on progress every five years, to publish reports of internal audits of compliance with the code of practice for timber production, and that has not been done.

In our view that points to the fact that it allows state governments to engage in environmental vandalism without the oversight of the federal government. We think that is a bad thing.

Ms Olden : The RFAs themselves are supposed to respond to new information and amend accordingly. In this situation, we have seen the 2009 bushfires dramatically change the landscape in the Central Highlands region which is covered by the particular RFA we are discussing in relation to the leadbeater's possum. As far as we are aware, no amendment has happened.

Ms Bleyer : One action that was taken in response to breaches of clauses of the regional forest agreement was a Federal Court proceedings brought by former Senator Brown. He won in the first instance, before Justice Marshall, but then failed when the government appealed against that decision. However, one finding that the Full Court of the Federal Court on appeal did not interfere with was that if there was a breach of a clause of a regional forest agreement then the section 38 exemption falls over. So I would not be surprised that if something is not done about it and, given the state of our environment, there are not more cases being brought in the Federal Court, when there are breaches of clauses of RFAs, to remove the section 38 exemption and to require a proper assessment and approval process before logging takes place in threatened species habitat. If so, if the Commonwealth does not do something about it, it may find that it will have to be through legal intervention, which obviously concerned individuals and environment not-for-profit nongovernment organisations are having to do through desperation for the protection of threatened species. But the Commonwealth has an opportunity now to do something about it. It could be the greatest environmental legacy of this Commonwealth government, to remove the section 38 exemption and to give threatened species a chance.

CHAIR: Just to pick up on that last point, Ms Bleyer, are you saying that if there were effective assessment of RFAs and in that assessment it were determined that there were breaches of the RFAs, then essentially the provisions would work in a way that you would want them to work?

Ms Bleyer : If a logging operation was required to be referred under the act and it was assessed, and if there were threatened species present in the area proposed to be logged, then it would be found to be a controlled action. We would hope then that it would not be approved, and that the act properly applied. So long as it was found there were threatened species in the logging coupe, there is no way that logging can occur and the species can survive. In respect of breaches of the clauses of the regional forest agreement, the regional forest agreement becomes irrelevant if the logging has to go through the referral process under the EPBC Act.

CHAIR: But if a breach of a clause under an RFA would trigger such an approval process?

Ms Bleyer : From my understanding, no.

Senator WATERS: The community would have to go to court. Was that not your point earlier?

Ms Bleyer : That is right. If a third party, not a party to a regional forest agreement, wanted to do something about the fact that a clause of a regional forest agreement has been breached, then they would need to go to court and prove that in the Federal Court. If they prove that, then the section 38 exemption no longer applies. A successful outcome of the case from the protection of the environment perspective would be that breach of a clause of the RFA, the section 38 exemption does not apply and so any logging that has not been approved through part 3 of the EPBC Act would be unlawful. If logging had taken place in the proposed logged area the subject of such a court case would then need to be referred.

CHAIR: So there is no provision for the Commonwealth to identify a breach of the clause itself. It has to be identified through such a legal process through the court.

Ms Bleyer : The EPBC Act does not address what the Commonwealth would need to do if there is a breach of a clause of the RFA. Given the RFA is a contract, it is contract law that governs it. If the Commonwealth is a party to a contract, such as a regional forest agreement, and the party that it is in the contract with breaches it, then you are entitled—in my view, ought to—hold that party to account. At the moment, the Liberal Victorian government is breaching clauses of a number of regional forest agreements in the state of Victoria and it may be that a way that the Commonwealth can immediately do something about protecting threatened species in Victoria whilst it is considering any amendments to be made to the EPBC Act is that it can start enforcing compliance with its contracting partner, being the state of Victoria.

CHAIR: On the overall principles here, so that we know where everybody is coming from, Lawyers for Forests, do you have an overall policy position when it comes to the logging of native forests?

Ms Bleyer : Lawyers for Forests purpose is to protect Australia's remaining native forests.

CHAIR: So you are opposed to the logging of native forests?

Ms Bleyer : That is right.

Senator CAMERON: It is an interesting submission you have made, and congratulations for it. Young lawyers are actually turning their minds to some of the environmental issues that we face. It seems to me that this is a pretty narrow area that the bulk of your submission is about. I do understand that the Leadbeater's possum is the formal emblem in Victoria. Is that the only reason you have turned this up?

Ms Troup : I suppose we thought that it was a very pertinent example of what is happening when the federal government is not overseeing the protection of threatened species and what happens when a very environmentally destructive process is basically within the power of one government alone. We do not really understand why logging, which is such an environmentally destructive process, would be exempt from federal oversight in the sense that it is contracted out under the EPBC Act. What happened was that we got wind of the MyEnvironment decision, which was made early last year, which focused on the Leadbeater's possum as an example of species that are being made extinct by logging processes. We thought that was something that should form the basis of a submission. We did not understand why nothing was being done by either federal or state governments, although it is more obvious why nothing is being done by the federal government because it has given itself less powers of oversight over such issues.

Ms Olden : I think our comments can apply more broadly and, as Ms Troup said, the trigger for our interest was the MyEnvironment case and comments of Justice Osborn, who addressed the fact that these plans and the action statements have not been reviewed in some time, and that there is no body able to review these plans which are designed to protect the endangered species. I think our comments in relation to the inaction in amending plans when significant events occur or new information comes to light, whilst our submission is focused on the Leadbeater's possum, can be considered more broadly.

Senator CAMERON: Yes, considered more broadly. That is the point I was trying to make. I am not sure if you were here earlier, but I have been raising the issue of COAG and the number of decisions that COAG make about improving productivity and efficiency and the implications that has, mainly in business areas, for the environment. There is a sort of lack of focus by COAG on some of these issues in terms of endangered species. Have you ever given any thought to the role of COAG as distinct from the act itself?

Ms Troup : COAG tries to focus on the benefits for states and giving greater powers to the states in terms of environmental oversight. In our opinion it is important that there be two avenues of review. COAG has tried to promote the idea of cutting green tape and giving oversight of environmental issues more to the states. We believe that it is not necessarily a bad thing to have two levels of oversight of environmental issues. We think it is good if there is an avenue of review at the state and federal levels. We also think that the federal government is in a better position to oversee environmental protection because often it is a national issue such as how climate change, for example, or extreme weather events might affect a certain threatened species or a species that might not be threatened in one state but may be threatened nationally. I suppose we would say that COAG does not really have the interests of environmental protection.

Senator CAMERON: We have just concluded an inquiry on the very point that you are raising and there will be a report on that shortly. Could you look at the broader issue of the role of COAG in protecting endangered species to see whether you want to provide some further evidence to the committee on how we could improve the role of COAG on that environmental issue.

Mr Howard : Sure.

CHAIR: As there are no further questions, I thank you all for your time and participation as well as the submissions you provided. I remind you of the 6 March request for responses to questions on notice.