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| Ian Gilfillan Australian Democrats Member of the Legislative Council |
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Legislative
Council |
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| Ian Gilfillan Australian Democrats Member of the Legislative Council |
Parliament Index |
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NATIVE VEGETATION ACT
(edited transcript)
Order of the Day, Private Business No. 5: Hon. A.J. Redford to move:
That the regulations under the Native Vegetation Act 1991, concerning exemptions, made on 16 December 1999 and laid on the table of this Council on 28 March 2000, be disallowed.
The Hon. A.J. REDFORD: I move:
That this Order of the Day be discharged.
The Hon. IAN GILFILLAN: I would like to recognise that the Hon. Angus Redford anticipated that there would be a more substantial debate on the Hon. Michael Elliott's motion, and that is an extra reason for making this debate relatively short and sweet. I do not agree with the majority decision that there should be no action as far as these regulations are concerned. It is probably useful to read this communication to the Council at this point. Part of the argument by the majority of the committee was that Mark Parnell of the Environmental Defenders Office indicated that he believed that the regulations under review are technically and legally valid. He made some observations about it, and I leave it to honourable members to make their own conclusions. In his facsimile, Mr Parnell said as follows:
Thanks for the fax of extracts from the. . . report. The quote attributed to me in the report comes from my written submission addressing the LRC's disallowance criteria.
(c) whether the regulations contained matter which, in the opinion of the committee, should properly be dealt with in an act of parliament.
The act provides for clearance with the consent of the Native Vegetation Council, or if the vegetation is of a prescribed class or is cleared in prescribed circumstances. (s.27)
The exemptions contained in regulation 3 relate to section 27. The act allows for changes to the exemptions by changing the regulations. Therefore, the regulations under review are technically and legally valid. However that does not make them proper. It is submitted that the circumstances of the case should have required a more thorough public and parliamentary process, perhaps through the enactment of specific legislation which did not corrupt the level of protection afforded by the Native Vegetation Act.
He continues:
What I was getting at here is that whilst there seems to be no technical or legal reason why the government cannot amend the exemption list contained in the regs, this power has never before been exercised to facilitate a special nominated project before. If you look at the existing exemptions, you will see that they are all `generic' in their application. That is, they cover clearance for the purposes of firewood collecting, fence posts, fire breaks, tracks etc. throughout the state. The new categories of exemption relate to specific projects in nominated areas. I do not know whether parliament had intended the regulation/exemption power to be used in this way, however I doubt whether it was intended that the power be used to over-turn unsuccessful applications to the [Native Vegetation Council]. That is what I mean by `corrupting' the [Native Vegetation Council] process.
This is why I say that the regs are technically valid (not ultra vires), but still `improper'.
I do not believe that the regulations are proper in reflecting the anticipated head powers of the act. Perhaps in variance with Mike Parnell's view, I do not accept that the regulations are to be tolerated as bona fide regulations under the act. In my view, they are another example of regulations tailored to suit a particular circumstance that can be analysed and looked at in a separate context. However, that is not our job. I believe that these regulations are outside the authority of the LRC to approve and accept: that is why I oppose the motion to discharge and I support a future motion to disallow the regulations.
The Council divided on the motion:
AYES (9)
Cameron, T. G. Davis, L. H.
Dawkins, J. S. L. Griffin, K. T.
Laidlaw, D. V. Lawson, R. D.
Lucas, R. I. Redford, A. J. (teller)
Schaefer, C. V.
NOES (10)
Crothers, T. Elliott, M. J.
Gilfillan, I. (teller) Holloway, P.
Kanck, S. M. Pickles, C. A.
Roberts, R. R. Roberts, T. G.
Xenophon, N. Zollo, C.
PAIR(S)
Stefani, J. F. Weatherill, G.
Majority of 1 for the noes.
Motion thus negatived.
| Explanation: Although the motion to discharge the Order was lost, this does not mean that the Regulations were disallowed. Disallowance of Regulations can occur only when a motion to disallow has been put. In this case, there was merely an 'Order of the Day' suggesting that a motion of disallowance might be put. In the event, however, it was a motion to discharge the order which was put to the vote. The fact that it was lost on the division suggests that a motion to disallow the regulations might have been successful, if it had been moved. Mike Elliott did move such a motion. (see below) However, surprisingly that too was lost. Therefore the regulations remain in force. |
NATIVE VEGETATION ACT
(edited transcript)
Adjourned debate on motion of Hon. M. J. Elliott:
That the regulations under the Native Vegetation Act 1991 concerning exemptions, made on 16 December 1999 and laid on the table of this Council on 28 March 2000, be disallowed.
(Continued from 31 May. Page 1232.)
The Hon. IAN GILFILLAN: I indicate support for the motion. I believe that we have heard substantial argument about the stress that can be caused if the drain does not proceed to the program for the desalination and drainage of the northern areas of the South-East. I am concerned that yet again this parliament is being asked to pass or condone regulations which, as the Native Vegetation Council evidently said to the Legislative Review Committee, are seriously at variance with the objects of the act.
The basis upon which I believe there is a narrow opening of which the Environmental Defenders Office was also cognisant is section 6(c), which reads:
6. The objects of this act include-
(c) the limitation of the clearance of native vegetation to clearance in particular circumstances including circumstances in which the clearance will facilitate the management of other native vegetation or will facilitate the efficient use of land for primary production.
It is the second part of that paragraph of section 6 which, in my view, opens up an unreasonable opportunity to argue that the clearance of native vegetation can be condoned.
I do not believe we received evidence, nor do I believe it is my view or the view of many of the people with whom I have discussed this matter, that we should accept that an ad hoc measure to facilitate the scheme should be permitted by this parliament on the basis that nothing else, at this stage of the process, can enable the scheme to go ahead. There have been large periods of time and many hours of deliberation in working out how this problem could have been circumvented; but while we are talking about the value of compulsory acquisition we have not talked about the value of the native vegetation which is lost.
The principle of this legislation, both in its earliest forms and in current legislative form, is to protect native vegetation. Slowly and, lamentably, very late in the day, we have come to recognise the irreplaceable value of native vegetation. If compulsory acquisition did require an allocation of up to $2 million (and I am not convinced that is the amount involved), that is the course that should have been taken. I do not believe these regulations are appropriate in terms of the proper scope for reflecting the intention of the act. I do not believe that they are essential or the only measure available to get the drainage system working. For that reason, I intend to support the motion.
The Hon. M.J. ELLIOTT: There are a couple of aspects to this regulation that need to be examined very carefully. First, the effect of these regulations is to allow something that would otherwise have been contrary to the act and, in particular, to allow the clearance of significant amounts of vegetation. When I say `significant amounts of vegetation', I point out that people need to realise that in the Upper South-East the vegetation that has been cleared is a strip 17 kilometres long by 50 metres wide-I think that is 850 hectares. It is a very sizeable amount of native vegetation to be cleared. It is a matter of principle that one would allow 850 hectares to be cleared under a regulation which was proclaimed on 16 December but which did not come before this parliament until three months later.
When regulations are used to provide an exemption to an act of some significance and if parliament is denied access to that regulation, it is bad government. I would have thought as a matter of principle, and for that reason alone, the regulation should have been defeated. What is the message from the government? The message is that, if you can get away with it, go for it. It is trying on a regular basis to see what it can get away with and what it cannot. It has got away with this one.
Without arguing about the merits of clearance, which I will get to, I point out that this is a matter that has been around for many years. They were quite capable of either bringing it forward by a month or two or taking it back by a month or two. I do not believe the timing was purely coincidental. We have seen that with other regulations in this place, where they avoid parliamentary scrutiny until after the deed has been done-not only that something had been made legal but the act they wanted to make legal had been carried out. The parliament was actually irrelevant in relation to the issue. That is the first point.
This is not minor clearance: it is over 800 hectares, in a strip 17 kilometres long by 50 metres wide, right through the middle of native vegetation. That has a great many ramifications and it is why Senator Robert Hill was so upset, because for the most part he takes this sort of thing seriously. He realises that a scheme that commonwealth funding goes into for environmental reasons has been used for major environmental vandalism.
I am not opposed to schemes to remove salinity from the Upper South-East. In fact, the parliamentary record shows that I have been raising issues about dry land salinity in the Upper South-East for as long as I have been in this place.
The Hon. A.J. Redford interjecting:
The Hon. M.J. ELLIOTT: Well, that could be. This is not simply a matter of being opposed to native vegetation clearance itself. I remind honourable members that, if they take the time to look at changes in the Native Vegetation Act, they will see that a change was made to allow clearance of what was known as `isolated trees' under some circumstances. Previously, the Native Vegetation Council could not grant permission for clearance and, as a consequence, significant farming activities were being held back in some cases. The Democrats facilitated the passage of amendments that allowed that to happen. In hindsight, I believe that that clause has been abused, but we do realise that there are times when native vegetation clearance becomes necessary.
The next point is how necessary was the clearance authorised by this regulation? It has already been conceded in this place that there were other options. The Hon. Angus Redford talked about the cost of land acquisition. One has to ask the question: what value does one put on 850 hectares of native vegetation? How much would it cost the government to pay for a revegetation scheme for 850 hectares? Once you cut a swath through native vegetation, you usually find that the native vegetation either side of that will degrade. I understand that this drain will flow most of the time and will interfere with the movement of native animals, particularly smaller ones. The impact will go well beyond just the obvious native vegetation issue. Of course, one would expect that around the drain there will now be a perched water table. A water table will always rise to the same level as the water within a drain. One will now see salinisation on either side of the drain killing vegetation further back. So, we have lost 850 hectares already and there is a fair chance we will lose another 1 000 or 2 000 hectares more, or at least it will be severely degraded with an impact on the movement of native animals, at which point the money being talked about is an absolute pittance.
As I said, there were alternatives. There were alternatives that Senator Robert Hill, the federal Liberal environment minister, wanted. But they did not happen. Now, it has almost been suggested that a perhaps a bit of blackmail was involved in terms of how one landholder was going to behave. That makes it even more reprehensible: it is not a defence. We should be debating in this place the Upper South-East drainage system and the raising of levies. That is the debate that should be happening rather than a debate about an action by the government because a threat was made on the levies. It is quite extraordinary. There were alternatives and, quite simply, they were avoided.
In relation to the case on Eyre Peninsula, I have previously made the point in this place that the government seemed to have a remarkably selective memory or understanding. We passed legislation in this place and the government refused amendments that noted the impact that trees have on groundwater recharge. In this regulation-which predates this debate by close to seven months-the government is saying that trees have a major impact on recharge and it is important to remove trees. The issue of water resources on Eyre Peninsula is important, but the government has not presented any scientific evidence to back up what it is doing. Advice I have received is that aloe casuarina, the predominant genus to be cleared, is a shallow rooted tree that has limited impact on groundwater recharge. The government may want to dispute that but my understanding is-and members certainly have not responded during this debate-that they do not have the scientific evidence that shows that the removal of that species of tree will improve recharge in any significant way.
This is typical of the government: it does not do the necessary work before making a decision. If we rubber stamp sloppiness, it no longer reflects on the government but on the members of this place, and it reflects upon the parliament. I am bitterly disappointed that sloppiness is rewarded and that contempt of parliament is rewarded, because it seems that is what is happening in this place at the moment.
There should have been proper scientific research in terms of the impact of those trees, not only in terms of recharge but the importance of the trees in other ways. When presenting the motion initially I noticed that glossy black cockatoos on Eyre Peninsula are in very small numbers. It is a very rare and endangered species and, as I understand it, aloe casuarinas are a very important food source for most cockatoos. Again, I believe that fact would have been neglected during consideration of the regulations. Homework should have been done on that. What alternatives were considered?
In other water limited areas like Kangaroo Island the government has considered desalination as a source of water for domestic purposes. It is unfortunate that we have to go down that path, but there are some areas of the state where it looks like it will be inevitable. We have to be very careful in our use of the resource. The old notion of the European garden has well and truly gone. For many people in Streaky Bay it went long ago, because I understand that they have considerable restrictions in place. That, unfortunately, will have to continue.
I urge members who have suggested that they will oppose this disallowance motion to give it urgent reconsideration, otherwise they will be rewarding contempt of parliament as well as rewarding scientific and other incompetence on the part of the government.
The Council divided on the motion:
AYES (8)
Elliott, M. J. (teller) Gilfillan, I.
Holloway, P. Kanck, S. M.
Pickles, C. A. Roberts, R. R.
Roberts, T. G. Zollo, C.
NOES (11)
Cameron, T. G. Crothers, T.
Dawkins, J. S. L. Griffin, K. T.
Laidlaw, D. V. (teller) Lawson, R. D.
Lucas, R. I. Redford, A. J.
Schaefer, C. V. Stefani, J. F.
Xenophon, N.
PAIR(S)
Weatherill, G. Davis, L. H.
Majority of 3 for the noes.
Motion thus negatived.
