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Thursday, 20 August 2015
Page: 8987


Mr HUNT (FlindersMinister for the Environment) (09:14): I move:

That this bill be now read a second time.

The Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) is Australia's national environmental law and is amongst the most stringent in the world. It provides a legal framework to facilitate sustainable development, while protecting nationally and internationally important flora, fauna, ecological communities, migratory birds, heritage places and water resources.

Over fifteen years, the act has provided certainty for projects and ensured protection of the environment.

Since coming to government we have undertaken a careful reform process through:

1. Establishing a one-stop shop for environmental assessments with all states and territories.

2. Approval of projects with a construction or resource value of over $1 trillion. Many of these projects and much of this value was the result of clearing the backlog of projects in some way deferred or delayed by the previous government.

3. Reduced approval times by up to 50 per cent.

This has meant that not only do we have world-class environmental standards, we have world-class administration. Our reforms are about protecting the integrity of the EPBC Act.

However, a major threat to the administration of the EPBC Act has emerged recently. This is the direct Americanisation through the use of litigation to 'disrupt and delay key projects and infrastructure' within Australia and to directly 'increase investor risk'.

This is an unprecedented new development in Australia, drawing the worst features of the American litigation industry into Australia.

Currently we see actions in state courts against three major Galilee Basin projects, amongst others, which the Queensland government is now defending. The intention and reality is that major resource projects and infrastructure are similarly subject to challenge under federal law.

I refer to the following quote from a former Labor Treasurer, Keith De Lacy, in today's Brisbane Courier Mail:

… green activism had increased the costs of developing a mine by up to 10 times.

… a development that took just over a year in 2008 would now take up to five years as companies get weighed down by litigation.

I agree with everything the Federal Government is doing.

Contrary to the intentions of the EPBC Act, the federal law is now being used to 'disrupt and delay' infrastructure. The strategy is almost completely disconnected from concerns which were the intended purpose of the EPBC Act.

In 2011 a number of organisations produced a document expressly setting out a plan to disrupt and delay key projects and infrastructure. It expressly sets the goal of 'increasing investor risk' in Australia.

The groups who helped develop the document included Greenpeace, the New South Wales and Queensland environment defenders office, Lock the Gate, Beyond Zero Emissions, GetUp, the Mackay Conservation Group and the Australia Institute among others.

Interestingly, the trade union United Voice was also involved in the document's production.

The document's strategy was simple—as outlined on page 3:

… to 'disrupt and delay' key projects and infrastructure while gradually eroding public and political support for the industry.

After outlining the six elements of the strategy which focused on increasing investor risk and costs, section 4.1 discussed litigation.

Legal challenges can stop projects outright, or it can delay them in order to buy time to build a much stronger movement and powerful public campaigns. They can also expose the impacts, increase costs, raise investor uncertainty, and create a powerful platform for public campaigning.

The express objectives include:

1. Mount legal challenges to the approval of several key ports, mines and rail lines.

2. Run legal challenges that delay, limit or stop all of the major infrastructure projects (mines, rail and ports) that have been identified as a high priority in the strategy.

This is undoubtedly contrary to the intent of the EPBC Act which was to create certainty based on stringent environmental assessments. Indeed the EPBC Act was created to provide certainty for the environment and for project proponents.

It is very clear that the EPBC Act was not intended to be used to 'disrupt and delay key projects and infrastructure'.

The document then outlines in detail how tactics can be imported from the United States. Page 11 clearly states:

Traditionally, environmental organizations have tended to employ "projects officers" with a research, policy and advocacy focus or campaigners who design and lead campaigns themselves.

This is in stark contrast to the organizing model widely (and successfully) in the US where "community Organizers" support grassroots leaderships and Organize communities to build and express their own power.

The objective is clear—it is to design a community organisational model that adapts the 'US organising techniques to an Australian context'. Let us be clear about what this represents.

This is not some community based grassroots campaign.

This is a US style top-down litigation approach which expressly seeks to use third-party involvement in US style litigation to 'disrupt and delay key projects and infrastructure'.

What we have seen to date is a well-funded and coordinated strategy to frustrate the careful consideration of the EPBC Act approval process which is by any measure one of the most stringent in the world.

This is the explicit Americanisation of environmental campaigning with its focus on tying up projects in legal challenges where the goal is not to win, but to disrupt and delay.

Therefore we are seeking to bring the EPBC Act standing provisions in line with the broad Commonwealth standing provisions so as to ensure that it is those with a genuine and direct interest in a matter, such as farmers and landowners, who have the right to standing and to protect their interests under section 5 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).

The need to normalise the EPBC Act

Section 487 of the EPBC Act sets out an extended standing far beyond the Commonwealth ADJR Act provisions.

In particular, the section enables individuals, organisations or associations who have, at any time in the two years immediately prior to the decision in question, engaged in a series of activities in Australia or an external territory for protection or conservation of, or research into, the environment, to commence proceedings for judicial review under the ADJR Act.

This provision of the EPBC Act was well intentioned; however it has now become the basis for the Americanisation of the Australian justice system. It allows virtually any person or group to bring a lawsuit, regardless of whether they are adversely affected or even near a project. This is out of step with Commonwealth law and has provided a legal loophole for activists to exploit.

Lawsuits that are designed purely to delay a project, increase costs and increase uncertainty for investors, and create a platform for campaigning, undermine the intention of the EPBC Act to provide a process with both high standards and certainty for assessing proposals.

It is informative to note that Dr Moss Cass, minister for the environment in the Whitlam government, oversaw the introduction of the legislation which preceded the EPBC Act. In this legislation, there was no special treatment for environmental groups.

When passing that legislation, Dr Cass stated in his second reading speech that the government had decided not to have wide standing provisions. He noted difficulties in the United States arising from its environmental impact assessment due to 'too frequent a resort to the courts'.

Twenty years later, the then government in good faith gave environmental groups greater rights to intervene. This provision has now been distorted by bringing and threatening lawsuits designed only to delay and frustrate proponents. We now need to reinforce the purpose and intention of the EPBC Act, while preserving legitimate rights for farmers, landholders and other genuinely interested parties.

Section 5 of the ADJR Act sets the standard definition for Commonwealth law regarding who can make an application for judicial review as an aggrieved person. An aggrieved person includes a person whose interests are adversely affected by the decision, such as a farmer or adjacent landholder.

The Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 (the bill) will repeal section 487 to normalise the EPBC Act in line with the standing provisions of the ADJR Act.

This is exactly the same standing as the Australian Crime Commission Act 2002.

Exactly the same standing as the Biosecurity Act 2015.

Exactly the same standing as the Australian Energy Market Act 2004, I am advised.

The EPBC Act standing provisions were always intended to allow the genuine interests of an aggrieved person whose interests are adversely affected to be preserved. This will continue to be the case.

The EPBC Act standing provisions were never intended to be extended and distorted for political purposes as is now occurring with the US style litigation campaign to 'disrupt and delay key projects and infrastructure' and 'increase investor risk'.

Changing the EPBC Act will not prevent those who may be affected from seeking judicial review. It will maintain and protect their rights. However, it will prevent those with no connection to the project, other than a political ambition to stop development, from using the courts to disrupt and delay key infrastructure where it has been appropriately considered under the EPBC Act.

Conclusion

Since coming into government we have applied the highest environmental standards. We have halved the time for environmental approvals and cleared the backlog of projects left by Labor.

We have approved over $1 trillion in projects and established a one-stop shop for environmental assessments. All while maintaining environmental standards.

Indeed, the World Heritage Committee not only reversed the direction we inherited of the Great Barrier Reef being on the 'watch list' with a direct path to being placed on the 'in-danger list'; it lifted the Great Barrier Reef back to the highest rank of World Heritage listing and praised Australia as a global role model only seven weeks ago.

With this bill we are seeking to restore certainty to the EPBC Act, prevent the Americanisation of Australian trial litigation, while reaffirming the sanctity of EPBC Act processes and the ongoing rights of genuinely concerned farmers, landowners and other similar parties.

I commend the bill to the House.

Debate adjourned.