Environmental law 'reform': another Democrat sell-out
By Jim Green
After several weeks of secret negotiations, the Australian Democrats and the federal Coalition government have agreed on more than 500 amendments to the Environment Protection and Biodiversity Conservation (EPBC) bill.
The Democrats justified the deal with the now familiar rhetoric of "relevance". Democrat Senator Lyn Allison, who chaired a Senate inquiry into the bill, said: "The ALP and the Greens are in the cosy position of having made themselves irrelevant with their carte blanche opposition to the bill. The Democrats have now evolved to a point where as a party we are prepared to actually go into bat for the environment and achieve legislation."
The EPBC bill passed the Senate on June 23 after the Democrats and the government combined to limit debate. The Democrats justified the haste by claiming that Senator Brian Harradine was about to do a deal with the government which would have resulted in worse legislation.
However, on June 22, the Democrats refused to vote for an amendment by WA Greens Senator Dee Margetts which would have delayed consideration of the bill until August (when Harradine will no longer hold the balance of power).
Margetts claims the bill was rushed through to expedite the passage of the GST legislation: "The only logical explanation for this outrageous abuse of proper parliamentary process is that the agreement to pass and gag the environment legislation was part of the original deal on the GST bills".
The 430-page EPBC bill replaces five existing pieces of commonwealth legislation. It provides some improvements, such as new controls on genetically modified organisms, the development of a legal regime to govern access to biological resources, stronger commonwealth powers in relation to threatened species and provisions for assessment of the environmental impact of fisheries.
Minor improvements in specific areas have been sufficient to win support for the new legislation from the World Wide Fund for Nature, the Humane Society International, the NSW Conservation Council, the Queensland Conservation Council and the Tasmanian Conservation Council.
However, the new legislation has attracted fierce criticism from national environment groups such as the Australian Conservation Foundation (ACF), the Wilderness Society and Greenpeace.
The legislation specifies areas which will automatically trigger commonwealth decision-making powers such as World Heritage areas, wetlands of international significance, nuclear activities, ecological communities, migratory species and threatened species.
Environment groups object to the absence of automatic triggers for greenhouse gas pollution, land clearing, forest protection and water allocation.
Greens Senator Bob Brown said, "When you boil this deal down, the list of national environmental significance triggers is unchanged, and the central issue of the commonwealth handing its environmental power and responsibilities to the states is unchanged ... The only thing wider than the Democrats' capacity for disillusioning environmentalists is the grin on Robert Hill's face."
The ACF, Wilderness Society and Greenpeace have produced a critique of the legislation titled "82 Reasons Why the Environment Protection and Biodiversity Conservation bill is Bad for the Environment".
John Connor, ACF campaigns director, said there are five main problems with the new legislation: commonwealth environmental powers are too narrowly defined; exemptions and discretions provide many opportunities for the commonwealth to duck responsibilities; bilateral agreements facilitate a handover of commonwealth responsibilities to the states; ecologically sustainable development is not properly defined or taken into account; and the legislation provides a poor platform for leadership in protecting the environment.
Greenhouse
One of the "concessions" the Democrats achieved during negotiations was a statement from the government that it "intends that upon passage of the [EPBC] bill it will begin a process of consultation with the states and other stakeholders on the issue of applying a commonwealth greenhouse trigger under that legislation in relation to new projects that would be major emitters of greenhouse gases".
The EPBC act does not contain an automatic greenhouse trigger. Lyn Allison said the Democrats would continue to seek the addition of greenhouse emissions to the list of triggers.
The legislation exempts regional forest agreement areas — the major reservoir of Australia's biodiversity — from commonwealth environmental impact assessments. Commenting on this, Virginia Young, a spokesperson for the Wilderness Society, said, "The [bill] is misnamed — it neither protects the environment, nor does it conserve biodiversity".
The Democrats moved amendments to provide for increased forest protection, but the amendments were defeated by the government and the ALP.
State powers
Environment groups are concerned that the legislation gives too much decision-making power to the states. Allison denies this, saying, "The Democrats have strengthened commonwealth environment powers, and anyone that says otherwise is simply ignorant of the bill or deliberately misleading the public".
However, Professor Rob Fowler, director of the Australian Centre for Environmental Law and one of the few people to have examined the 500-plus amendments to the original bill, said, "Whilst there are numerous commendable improvements to the bill, particularly concerning biodiversity protection, I believe that it remains fundamentally flawed in relation to the provisions for bilateral agreements with the states".
Even in the six areas which automatically trigger commonwealth involvement, the government can hand powers to the states through bilateral agreements.
Fowler said that despite the amendments, "The commonwealth could, in the near future, completely withdraw from the field of environmental assessment and approval of projects as significant as sandmining on Fraser Island or the Franklin River dam by concluding a series of bilateral agreements with the states".
Projects such as a Franklin River dam could be pushed through without breaching an accredited management plan, bilateral agreements or the EPBC act itself.
Fowler said, "It is difficult to understand why the Democrats endorsed the EPBC bill, unless they simply failed to understand the legal and political implications of their amendments. It defies belief that the Democrats also colluded with the government to keep secret 511 amendments to the legislation, then gagged all debate on them ..."
Environment minister Robert Hill said that business would find the new act works "so much better than the existing system. I am sure they will be supportive." Hill said the legislation would not come into effect for 12 months "to enable the negotiation of bilateral agreements, for getting industry comfortable and familiar with the new processes".