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Wednesday, 27 June 2001
Page: 28757


Mr MURPHY (7:08 PM) —The Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Bill 2001 is noteworthy for its complexity, its alteration to the existing legislative scheme and its moral position. In the time allowed for me to speak on this bill, I wish to concentrate on the issue of the consolidation of Australia's international obligations under those international instruments to which Australia is a signatory. The relevant international instrument for the purposes of the bill before the House tonight is the Convention on International Trade in Endangered Species of Wild Fauna and Flora, CITES.

When a country becomes a signatory to an international instrument, there is a legitimate expectation by the world at large that that country will honour its international obligations to make the domestic law consistent with its obligation. We saw recently what could happen when the United States simply could not avoid its obligations under the Kyoto protocol so it simply ignored these obligations. There is no honesty in such action. It is a morally bankrupt position.

In Australia we have the same problem with our human rights record against our indigenous population when read in light of our being a signatory under various international obligations. One example of direct relevance to my electorate of Lowe is Australia's obligations as a signatory to the following two agreements: the Japan-Australia Migratory Bird Agreement, or JAMBA, which is Australian Treaties Series No. 6; and the China-Australia Migratory Bird Agreement, or CAMBA, which is Australian Treaties Series No. 22.

I note that migratory species of birds that fall under one or both of these treaties migrate along the Parramatta River, which divides my electorate and the Prime Minister's electorate. Unfortunately, tonight time precludes me from explaining in detail the difficulty I have had in making representations to the relevant state and federal government agencies in attempting to make those treaties relevant for planning purposes for development along the Parramatta River foreshore.

I do not have the benefit of the proposed schedule of gazetted endangered species as prescribed under the proposed bill, and for this reason cannot juxtapose that scheduled list with the bird life the subject of the CAMBA and JAMBA treaties. However, it would be odd and inconsistent if any bird life the subject of CAMBA or JAMBA were not included in the schedule here today. That is to say, law must be consistent with itself. There is little point in protection of an endangered species from import or export on the one hand, whilst destroying its habitat on the other. That would be inconsistent policy and a futile exercise in passing well-meaning legislation that ultimately fails in its objective of protecting that wildlife.

However, this is the situation we have here. The Parramatta River foreshore development scenario is an all too familiar situation whereby we attempt to save with one hand, whilst destroying with the other. Those with any knowledge of environmental law will tell you that our various disparate legislation at state and Commonwealth levels is disjointed. By disjointed, I mean that the legislation can vary in respect of a particular species in terms of what protection, if any, is afforded to that species.

For example, this bill means that a species of animal may be `endangered'. For a species of flora, that species may be `endangered' but not necessarily `protected' under New South Wales legislation. There may also be consistent or inconsistent treatment of this species in heritage and other legislation. It is even more complicated when a species of flora may not be listed as endangered per se but, due to its relationship with an endangered species of fauna, its local extinction would be tantamount to local extinction of the fauna as well. It is necessary to review all environmental legislation, bringing these schedules under one consolidated banner.

It is insufficient that we can have many state and Commonwealth items of legislation treating the same species in different ways. I have raised the precautionary principle in his House on a number of occasions, either alone or in the broader context as part of the principle of ecologically sustainable development. This bill has delimited the precautionary principle to a list of actions that compel the principle to be considered, with the implicit rider that what is not included is therefore excluded. That is, any other power that may require application of the precautionary principle that is not listed in subsection 391(3) is implicitly excluded as a factor for consideration in the exercise of ministerial or other statutory power.

This is an insidious trend in legislative drafting. That trend is to enumerate a list of actions by application of a moral imperative, thereby actually excluding that moral imperative from other actions. Further, the act of enumerating the obligation on the minister to consider the precautionary principle only in certain circumstances gives the impression that the precautionary principle's moral validity is a direct product of positive law, which it is not. The moral validity of the precautionary principle is reason itself. The precautionary principle, together with ESD and other principles such as intergenerational equity, are intrinsic values which cannot be reduced to a list of descriptors of whether the principle's application is `in' or `out' .

Of course, section 391 is a mandatory provision: the minister `must' consider the precautionary principle, and this, in turn, does not delimit the application of the precautionary principle in other parts of the act as appropriate. However, it is the observation of contemporary practice that this is, indeed, how the act will be read. The legal maxim `expressio unus est exclusio alterius' may be stretching the effect of delimiting by lists, but it is not far from the truth. Include one, and you run the risk of excluding the others.

Time permits me to go no further, because I know we are on a short time frame. In essence, I support the bill. I commend the government for the bill and at some future date I will enumerate further detail.