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JOHN CORKILL[*]
John Corkill sets out a sweeping, pure Green agenda for implementation by a future
Commonwealth Government.
If I were Attorney General I would have much to do to overhaul our national environmental laws so they were consistent with the real concerns about the environment held by many mainstream Australians. That a quantum shift in Australians' attitude to the environment has happened over the past ten years is best evidenced by the flurry of recent action by both the Howard Government and the ALP Opposition. Big green initiatives are tumbling out. From the Government: proposals to protect uncleared bushland in Queensland by 2006, to fully protect 30% of the Great Barrier Reef and even to talk tough on plastic bags. From the Opposition: promises of ratifying the Kyoto Protocol, more water for the Murray and an end to broad scale land clearing. All good stuff and all aimed both to have a few strong environmental dot points in their electoral guff and also to staunch the flow of votes from both parties to the Greens.
But even these things are not enough if our national level of government is to take the environment seriously. Since the 1990s both Labor and Coalition governments have wanted to shed, rather than exercise, responsibilities for the environment. The Howard Government's own Australian Terrestrial Biodiversity Audit, leaked earlier this year, shows that Australia is on the verge of an extinction crisis with the world's worst rating on mammal loss to be joined by bird and reptile losses.
Australia faces not only an environmental crisis but also a social crisis. The causes of this loss of life - land clearing, greenhouse pollution and poor land management impact us all. Land clearing is the major cause of salinity, which is also poisoning our rivers and ruining roads and other infrastructure. Greenhouse pollution is leading to climate chaos and scientists predict more intense droughts, floods and storms. These predictions, some scientists are already saying, can be seen in the current drought and its attendant bushfires, in floods in Europe and storms across the planet. Greenhouse pollution is predicted to lead to a greater spread of mosquito borne diseases and worsening health for asthmatics.
Australia's environmental crisis is a national crisis requiring national leadership well above what we have on offer from the mainstream political parties. When I am AG, let's hope Bob Brown is PM!
The Howard Government points to its Environment Protection and Biodiversity Conservation Act (EPBC Act), but this legislation is deeply flawed having wide ministerial discretion. It excludes native forests, land clearing, environmental flows, greenhouse pollution and genetically modified organisms. (These last two matters were promised to the Democrats in their deal with the Coalition but are presently nowhere to be seen.) Most alarmingly the EPBC Act's environmental assessment provisions have virtually failed to control inappropriate development. In its almost three years of operation some 900 development applications have been triggered by the Act. Only one has been refused – because it was illegal under state law -and only 46 have had conditions imposed. Far from the greater public scrutiny promised by then Minister Senator Hill, there have been only five environment impact statements, one public environment report and no public inquiry. The Act is now seen by many as an elaborate sham!
Similarly the National Action Plan on Salinity is running out of puff as both Commonwealth and state governments bicker. The seven-year plan has now become an eight-year plan with nowhere near the investment flagged by the Australian Conservation Foundation and the National Farmers Federation nor the tax and other incentives to promote sustainable agriculture that can play a part in repairing our damaged rivers and bushland.
But the way the National Action Plan money is being stretched is nothing compared to how the Howard Government is stretching the much vaunted billion dollar greenhouse program. Part of the 'Measures for a Better Environment' deal which enabled the GST to go through, this billion dollars was to be spent over four years, ie $250,000,000 a year. The last budget quietly announced this would now be spread over fourteen! Now it is just under $72 million a year!
Part of my agenda, therefore, if I were Attorney General, and a member of Cabinet, would be to ensure adequate funding for urgent and ongoing essential environmental restoration and protection works and programs. I would advocate a clear ranking of funding needs across all portfolios and the allocation of Commonwealth moneys on that basis, putting an end to expensive ad hoc costs such as fridge magnets and overseas junkets. My argument would be that if changes in the balance of government receipts and expenditure are necessary to provide adequate funds, so be it, let's make those changes.
But back to law reform! As an Attorney General pursuing an urgent environmental agenda I would:
• Re-instate the National Estate Register as a listing of integrity and national significance through amendments to the Australian Heritage Commission Act (AHC Act) to protect areas listed on the National Estate from damage, development and compromising activities. I would add criminal liabilities to expanded Commonwealth responsibilities. Current provisions that permit damage to items listed on the Register of the National Estate if there is no prudent or feasible alternative would be repealed. The Howard Government's proposed new heritage laws that go backward on AHC Act provisions would be tossed out.
• Promote ail amendment to the Native Title Act to require state governments to recognise and respect Indigenous peoples' interests and native title holders' special interests
in reserved natural and/or cultural heritage areas (such as National Parks). The amendment would encourage through incentives, the adoption of Indigenous Land Use Agreements or other arrangements that give indigenous people an effective say in the management of these natural areas and their cultural features.
• Repeal the Commonwealth's Regional Forest Agreement Act (RFA Act) and return responsibility and liability for decisions to protect Crown-owned forest lands to the states. Through changes to the Export Regulations I would also ban the export of raw forest products such as woodchips or whole logs on the basis that their export results in lost opportunities for employment in processing and adding value as a higher grade product, and is therefore unsustainable.
• Introduce a federal Crimes Against the Environment Act that:
- creates a new crime of 'wilful or reckless damage to the environment' for harm done to areas protected under the National Estate or World Heritage listings;
- apportions criminal liability to the directors of companies that allow their corporation to breach Common wealth environment protection legislation;
makes possible a court order to restore any environment or place harmed through corporate breach including via the seizure and/or application of company assets to enable the restoration work required;
requires companies convicted of harming the environment to report their conviction in their Annual Report and any subsequent Prospectus;
- bans directors convicted of 'corporate' breach of environment protection legislation from holding company directorships for five years.
• Amend the Environment Protection (Biodiversity Conservation) Act to:
- have targets as well as triggers for existing elements plus native forests, land clearing, environmental flows, greenhouse pollution and genetically modified organisms;
- protect world heritage places not just their 'values', a legal artifice rejected by the World Heritage Commit tee as inadequate and which offers only partial protection for places of international importance;
- include government planning and funding authorisations as actions which can trigger the Act (their exclusion means well advanced development proposals which have economic and often political momentum trigger the Act, explaining the low knock-back or conditions rate mentioned above).
• Introduce a Clean Green Farm Bill that:
- bans the trialling or production of genetically modified organism (GMO) crops on the basis that they represent a fundamental threat to the agricultural integrity of the nation;
- creates liability provisions for 'genetic pollution' by GMOs contaminating non-GMO crops;
– requires specific labelling of all foods containing GMOs and /or irradiated ingredients.
• Introduce mandatory Container Deposit (Return to Manufacturer) legislation that:
- applies a deposit of 10 cents on containers for food, drink and cleaning agents;
- encourages outlets to develop 'points of return' adjacent to their points of sale, to facilitate ease of return of container and recovery of deposit;
- binds all Commonwealth, state, territory and local government authorities and their business units;
- stipulates that all government agencies at all levels would review and adopt new purchasing policies permitting only the purchase of products that comply with the container deposit provisions;
- requires packaging and beverage companies to comply fully within 12 months or attract penalties;
- commissions further feasibility studies into the use of container deposits on a range of other packaging.
• Urge the Prime Minister to ignore the US, ratify the Kyoto Protocols on Greenhouse Gas Emissions and co-operate in a global campaign by citizens, corporations and nations to address and reduce the impacts of human-induced climate change.
• Introduce a Greenhouse Gas Emissions Reduction (Mandatory Targets) Bill that binds the Commonwealth and all states and territories. The Bill would specify binding greenhouse gas emission standards, ie levels and timetables for reductions and would provide significant penalties for non-compliance. The Bill would prohibit any increase in coal fired power generation capacity, increase the mandatory renewable energy target to 10% in 2010, 20% in 2020, mandate energy efficiency improvement targets of 50% improvement by 2025 and require a total transition to clean renewable power by 2050.
• Propose the enactment of a Renewable Energy (R & D Incentive) Bill that would allow 200% tax deductibility on investments in research into and the development of the application of renewable energy technology to domestic, commercial and industrial uses. The Bill would embrace solar, geo-thermal, hydro, chemical, wind and tidal power, but would not include bio-mass combustion.
•Seek leave to introduce a Public Benefits from Private Property (Incentives) Bill that would: provide a package of financial incentives (such as 100% tax deductibility on certain items, non-taxable stewardship payments, and one-off grants) for land management measures that deliver the protection of water quality, biodiversity, native vegetation and scenic values on private property and or reductions in bushfire hazard and risk.
• Enact legislation to create a National Land Restoration Corps (LaRC). This legislation would enable the formation, in conjunction with state governments, of a permanent corps of mobile field workers operating under the direction of qualified bush regenerators and other land management specialists to plan and execute land restoration plans for nominated priority areas initially and later all degraded lands. The Bill would:
- mandate the establishment of a national land restoration training scheme that would recognise, incorporate and build on existing state and local training programs and qualifications in land restoration practices and skills, and create a national career structure for young graduate or trainee land managers;
- ensure transferability of staff between LaRC units in other states and territories by creating a national train ing program and register of skills;
- allow LaRC teams to operate on private lands as a public or community contribution, where a recognised community benefit was being sought from the private property owner and where appropriate management plans existed;
- also provide for a government underwriting of insurance for the LaRC and;
- provide a range of incentive allowances to encourage LaRC members to undertake further training.
• Amend taxation laws to increase taxes on 'bads and nuisances' and provide tax breaks as incentives for sustainable practices, for example, the use of public transport.
• Amend ASIC legislation to require reports by corporations to include reports on natural resource use and energy consumption.
• Introduce open standing rights for all Commonwealth laws including environmental legislation, to allow citizens to enforce Commonwealth environmental and natural resource laws. These open standing provisions would parallel those in several NSW environmental laws such ass 123 of the NSW Environmental Planning and Assessment Act. This enables 'any person to bring proceedings ... to restrain or remedy a breach of the Act'. Further, I would insert relevant provisions into the Courts Acts to ensure that where a citizen brought public interest litigation before the federal court or another tribunal, the applicant in such proceedings would be protected from adverse orders on costs.
• Provide for adequate Commonwealth legal aid funding to be made available to enable legal aid to be granted to third party applicants seeking to prosecute breaches of state or Commonwealth environment protection laws.
I would not be content being a Green Attorney General however. For the future good stewardship of our island continent I would want to also be a republican Attorney General. Why would my being a republican AG make a difference to the environment? It wouldn't if all I was concerned about was the head of state, but it could make a great difference if I took a deeper look at what it is to be a republican. Res publica means the 'public thing'. It's about an engaged citizenry allowed and encouraged to participate beyond personal material interest, to engage in the 'public thing' the shared sense of community and mutual stewardship.
Historically the Attorney General under our Westminster constitutional monarchy has monopolised access to enforce public laws. As parens patriae the 'father of the law', Attorney Generals were supposedly there to act for the public interest. Individuals could only take action to enforce public laws if their economic interests were affected. The struggle for citizens to break down this monopoly and simply have the merits of the case heard, to have no hassles with 'standing', has been a real republican struggle.
Another area that deserves to be understood as part of the struggle is the campaign for greater corporate responsibility and greater shareholder democracy in corporate decision making. Why do we allow corporations, which we create through our country's laws, to become simply dollar generating machines? The reality is many corporations have as much, if not more, environmental and social impact than many governments. We should encourage executives and workers alike to recognise corporations as places where people need to come together and make important public decisions beyond short-term material ones. Rights for shareholders to call extraordinary general meetings should be safeguarded, perhaps via a Corporate Governance Board, elected with each shareholder having one vote, not based on number of shares. This Board could ensure that environmental and social considerations are integral to the corporation's economic decision making and pursue accountability for the corporation's adverse environmental and social impacts.
Stronger environmental laws and a more engaged citizenry would be my goals as Attorney General ...
Now I have drafting instructions, where is the telephone number for Parliamentary Counsel!
[*] John Corkill was a Greens candidate at the last NSW and federal elections and works as a consultant environmental educator, planner and policy adviser at Byron Bay in NSW. He was awarded a Medal in the Order qf Australia (OAM) in the Australia Day Honours List in January 2003for service to forest conservation in NENSW.
The writer acknowledges the kind assistance and advice of Mr John Connor, ACF Campaigns Director.
©2003 John Corkill
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2003/47.html