Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015, Parliament House

Mr DREYFUS (Isaacs—Deputy Manager of Opposition Business) (12:31):  I rise to oppose the Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015.

Mr DREYFUS (Isaacs—Deputy Manager of Opposition Business) (12:31):  I rise to oppose the Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015. The bill was introduced into the parliament on 20 August. It is a very simple piece of legislation. Its only measure, the only change it will effect to our law, is the simple repeal of one provision—section 487 of the Environment Protection and Biodiversity Conservation Act 1999. That provision provides extended standing to challenge decisions made under the EPBC Act. Its repeal will have the effect that the usual rules of standing under the Administrative Decisions (Judicial Review) Act apply to the review of decisions under the EPBC Act.

This may be a simple piece of legislation, but it tells you a lot about this government. The process by which the government came to introduce this bill tells you a lot about how this government is run and what its priorities are. The government rhetoric around this bill tells you a lot about its politics and about the way it wants to conduct public debate. Most importantly, the substance of this little bill tells you a lot about this government's values and about what sort of country it wants to build.

In his second reading speech the Minister for the Environment claimed that the bill is responsive to a trend of abuse of the EPBC Act—what he claims is a pattern of behaviour by certain environmental activists. This is transparently not the case. The government has not established any such trend. They have produced no evidence of what they claim is a flood of vexatious litigation. No, this bill is responsive to just one incident—the orders of the Federal Court of Australia on 4 August this year relating to the Adani Carmichael project. We should be very clear about what the Federal Court did in that matter, because it is the genesis of this bill. Unusually, we have the assistance of a public statement of the court, released on 19 August, explaining the court's orders. In that statement the court explains that on 4 August a judge of the court set aside the decision of the Minister for the Environment to approve, under the EPBC Act, the Adani Carmichael project. Crucially, though, the court said:

The orders were not made after a hearing. There was no judgment. There were no findings. The orders were made by consent, that is, with the agreement of the parties to the litigation.

Lawyers for the minister had written a letter to the court admitting that he had made an error in his approval decision. In making his decision the EPBC Act obliged him to consider advice about threatened species which a project might affect, but he had not done so in this instance. The minister, through his lawyers, conceded that this error invalidated the decision and asked the court to set it aside. As I said, it is unusual for the court to make a public statement about matters before it. Very diplomatically, the court said it did so in order to correct media reports about the Adani case. What happened, in fact, was that government had an almighty public tantrum. The orders of the Federal Court came about not because of any underhanded action by environmental activists—they were necessary, as the government itself admitted to the court—but because of an error the minister had made.

This is an opportunistic government, however. It is a government which is desperate for a fight. It is desperate to distract from the paucity of its own agenda. Instead of simply remaking the decision—and this time considering all of the information which the act requires—the government lashed out at the decision and at the environmental group which had brought the application to the court. It engaged in the most hyperbolic kind of rhetoric—which I will come to shortly. Instead of reflecting on its own ineptitude—the true cause of the adverse ruling by the court—it announced that it would change the law. This really is quite an extraordinary way to legislate—though it is one we are fast becoming used to under this government.

I am reminded of the crusade against the Racial Discrimination Act led by the Prime Minister and his Attorney-General in response to just one judgement by a single judge of the Federal Court concerning a single conservative opinion columnist. Because of that one judgement—a judgement which the columnist in question did not seek to appeal in even the Full Court of the Federal Court, let alone the High Court—the government decided to repeal a provision which had served the community well for over two decades. This time they did not even have a judgement. As the court explained, there was no trial, no hearing, no findings—just a single set of consent orders setting aside one decision of the minister relating to one mining project. If the government has its way, this is to be the basis for changing the rules about challenging all projects under the EPBC Act, Australia's primary national environmental protection statute.


The current standing provision, section 487, which this act would repeal, has been in place since the act itself was passed by the Howard government. The government has produced no evidence of any abuse of this provision, no evidence of litigation unfairly holding up any development. Since the EPBC Act commenced in July 2000, approximately 5,500 projects have been through the EPBC process. Of these, there have been 33 Federal Court challenges by third parties against only 22 projects—that is right: 22 projects, out of 5½ thousand. This equates to only 0.4 per cent of projects referred under the EPBC Act. Of the 33 actions, four were discontinued or resolved with the consent of the parties and six were legally successful in the sense that the applicant received a judgement or orders in its favour. Only one project was actually stopped. All the others were legally unsuccessful.


The operation of the EPBC Act was last subjected to an independent review in 2009, led by respected former public servant Dr Allan Hawke and a panel of experts. That review considered section 487 and the other extended standing provisions in the act. This was the conclusion of the review led by Dr Hawke: 'These provisions created no difficulties and should be maintained.' The current government is evidently ignoring this finding. They have not conducted any review of their own. They have not produced any real evidence. They have not consulted. They have barely thought about it. This is a government that values ideology over evidence. They are interested in politics not policy. This is no way to legislate in this national parliament. It is no way to govern Australia.


Of course, this government is not one to let the facts get in the way of a good slogan. With no evidence to back them up, they have engaged in some truly extraordinary rhetoric. They have spoken about 'vigilante litigation', a contradiction in terms if ever I saw one. They have slurred farmers and community groups as 'radical activists'. They accuse those who care about this country's environment of engaging in acts of 'sabotage'. And this is not coming from maverick backbenchers. It is not coming from the fringes of the Liberal and Nationals party rooms. This rhetoric is being spouted by cabinet ministers and by the Prime Minister himself. There is one minister in particular who ought to be singled out for this sort of language: the Attorney-General, Senator Brandis. As first law officer, he should be restrained in the way he talks about the courts and about matters before them. He ought never to denigrate the role of the courts in holding the government of the day to the letter of the law, in what must be a new low—


Mr Tudge:  You could denigrate a royal commissioner, a High Court judge—


Mr DREYFUS:  I hear a ridiculous interjection from the parliamentary secretary at the table, who is suggesting to me that a royal commission—which is in fact an executive inquiry, launched by the government of the country, launched by the Abbott government—is somehow to be compared with a court. He should know what nonsense it is, and it is consistent with this government that they have no idea of how to properly conduct the affairs of Australia. It is absolutely consistent with their ignorance of parliamentary convention, their ignorance of conventions about royal commissions, that the parliamentary secretary would seek to compare a royal commission to a court.


As I was saying, in the Senate, embarrassingly, the Attorney-General of Australia described, no less, an application for judicial review in the Federal Court, an application which was not contested by the government, as 'lawfare'. That is what we have come to—just like the ridiculous statements government ministers have been making, falsely comparing a royal commission to a court. We now have the Attorney-General of the Commonwealth saying that an application for judicial review in the Federal Court is 'lawfare'. The only thing that this kind of unhinged rhetoric which we have heard from the Prime Minister himself and which we have heard from ministers—


Ms Henderson interjecting


Mr DREYFUS:  and unhinged rhetoric like we are hearing now from the member for Corangamite tells us about this government is that it is a government that is desperate for a distraction. They are desperate to confect outrage, to pick a fight. It is a government boxing at shadows. The government's histrionics on this issue bear no relation to what this bill will actually achieve. The bill is not really about radical activists. It is not really about vexatious litigants or frivolous lawsuits. The courts already have powers under the general law to deal with vexatious applicants. They already have the ability to restrain abuses of their processes. It is an unjustified slur on the courts to suggest that they have not been using these powers appropriately.


What this bill would actually do is silence the voice of the community on environmental matters. It would strip Australians of the right they presently have to challenge important government decisions which might have profound environmental consequences, including impacts on our food security, the tourism industry and the health and quality of life of those living in regional Australia. It would take away the rights of farmers, graziers and agribusinesses whose lands and water supplies are often threatened by the impacts of major projects. It is a retrograde step, but no-one should be surprised. This government has an appalling record on environmental issues.


The Prime Minister talked a big game when he was in opposition. In 2009 he said he was a 'fair dinkum environmentalist'. In 2010 he told the ABC:


I reckon I have always been a conservationist. I have always taken the environment seriously.


As in so many other areas, the promises this government made before taking office have turned out to be completely illusory. In office, this government has waged an unrelenting war on Australia's environment—and, what's worse, on anyone who dares to try to defend it. In office, this Prime Minister turned out to be, as the respected international magazine Foreign Policy put it last year, 'the Australian environment's worst nightmare'. The Prime Minister destroyed Australia's carbon pricing scheme, something he boasts about endlessly. He asked UNESCO to delist 74,000 hectares of World Heritage forest in Tasmania, making Australia only the third country, after Oman and Tanzania, to try to abandon one of its own World Heritage sites.


Chillingly, though, a particular focus of this government has been on restraining public debate about environmental issues. The government wants to stifle activism and prevent the community from speaking out and organising around environmental causes.


In December 2013, after being asked to do so by the Minerals Council, the Attorney-General cancelled all funding to environmental defenders offices. Through the House Standing Committee on the Environment, the government has been waging a campaign against the deductible gift recipient status of environmental organisations. The Liberal Party has already made its attitude to this quite clear. Last year, at the urging of the member for Bass, the federal Liberal council passed a motion calling for such organisations to lose their DGR status. The member for Bass said that the groups which defend our environment are not 'real charities'.


This bill is just the latest salvo in that government campaign to silence the community, to silence those Australians who care about the environment, which I hope would be every Australian. Well, Labor will not stand for it. We will not allow this government to undermine the integrity of our environment protection laws. We will not let them cover up the Minister for the Environment's own incompetence with an attack on the rights of the community. I expect the people of Australia will not let them get away with it either.


The House should reject this bill, just as this House should reject the appalling attitudes which have been expressed by speaker after speaker from the government benches. They have demonstrated not the slightest understanding of the way our legal system is meant to work and not the slightest understanding even of the responsibilities of the national government to care for and protect our environment and to make it possible for all those in Australia who care about the environment to participate in ensuring that every development is in accordance with the law.