Speeches

Biodiversity Conservation Bill 2015

 

16 August 2016 HON LYNN MacLAREN (South Metropolitan) [5.10 pm]: As members know, the Greens have a proud history of advocacy for stronger environmental protections, including the ongoing promotion of the need for a modern legislative framework to conserve our precious biodiversity. In fact, way back in 2002, my esteemed colleague Hon Dr Chrissy Sharp stood before this chamber and introduced the Wildlife Conservation (Fauna Protection) Amendment Bill. The purpose of that bill was to close, as she put it — … the current glaring loophole in the Wildlife Conservation Act 1950 so as to bind or commit the Crown to apply the protections of that Act to native fauna. During her introductory speech, Dr Sharp noted — In time the entire Act will be replaced and updated. However, having at the time already been promised for 11 years, she felt that the wildlife of this state could wait no longer for improved biodiversity legislation. I cannot imagine the despair that Dr Sharp would have felt at the time if she had known that it would be another 14 years before a government even introduced a biodiversity bill into Parliament. At that time, Dr Sharp’s bill was voted down by the Labor Party, the Liberal Party, the National Party and One Nation. As I have noted before in the Legislative Council, I found Labor’s opposition to that bill particularly puzzling as the then Premier, Hon Geoff Gallop, came into office in 2001 promising the introduction of a biodiversity conservation bill as a priority for his government. In the 2005 election, this reform was again promised by Labor. However, not even a draft bill was released during the two terms of that government. The Liberal–National government also has a long history of promising biodiversity legislation to protect Western Australia’s wildlife. Several members interjected. The ACTING PRESIDENT (Hon Simon O’Brien): Order! Hon LYNN MacLAREN: Thank you, Mr Acting President. Dr Sharp’s bill was not the only bill that the Greens introduced in that long period. Members will recall that in 2014 I introduced the Biodiversity Legislation (Priority Reforms) Bill into the Legislative Council. That bill has been in abeyance since I introduced it in 2014, I believe in part because Premier Colin Barnett came to government in this term promising to do something about it. The Greens put something on the agenda in the hope that at least those priority reforms would progress. In the years between Dr Sharp’s and my own constructive attempts to introduce legislation, another of my esteemed colleagues, Hon Giz Watson, also worked tirelessly to bring biodiversity legislation to bear. She introduced the priority reforms legislation in the last months of the 2012 parliamentary sitting, I think it was. As I have briefly recapped, the need to protect Western Australia’s biodiversity through better legislation has been an issue that the Greens have advocated for, for many years, with very little gain. Members will understand that I am somewhat bemused to find myself before them representing the Greens’ position on a biodiversity conservation bill that was introduced by the current government. One of the problems with this legislation is the word “biodiversity” because I think that it tends to turn people off. The original bill used the word “wildlife” and people immediately connected with the idea of small furry animals. Unfortunately, that bill was originally to curtail hunting. The Biodiversity Conservation Bill is a much broader bill in its intent and it is a scientific bill. It is hard for members of Western Australia’s general population to get all excited about it. A former colleague, Cameron Poustie, was hired by the Conservation Council of Western Australia during the time of consultation in the Gallop government years. He worked tirelessly to develop a position on biodiversity conservation and produced quite a high-quality report. However, could people get excited about it and march in the streets? It was really difficult. I think one of the reasons is that it is hard to imagine what we are dealing with. I brought an example of one of the creatures we are talking about. This is a numbat as interpreted by soft toy manufacturers in China. This numbat is possibly one of the only numbats that many members here might ever see. How many members have seen a real numbat in the wild? We have a couple—one, two, three. It is very rare to see a numbat in the wild so I thought that I would bring one here in captivity for just a short time so we can see a very small example of what we are dealing with. In fact, this example is used quite frequently because, as members would well know, the numbat is Western Australia’s wildlife emblem. As our emblem, many people around the world know what a numbat is from its picture on Western Australian tourism documents. It is used to draw people to Western Australia because it is a pretty exciting, cute little fluffy animal. That is why one of the benefits of biodiversity conservation is protecting these little critters and making sure that they have a place where they can thrive. Western Australia puts quite a lot of effort into ensuring that they have a place where they can thrive. In fact, the Zoo has a big program that introduces numbats into the wild. As members well know, my office has been working quite a bit to try to save a little patch of numbats from extinction in Dryandra Woodland. It has one of the few remaining populations of numbats in the wild. It is at risk partly because of our poor environmental protection laws. Why we would let this little creature go extinct is beyond me because it is not only valuable in itself but also as a drawcard for a transitioning economy into nature tourism. Over the winter recess, we had a little debate about the significance of nature tourism, Western Australia’s investment in nature tourism and how it is really important to ensure that there is some nature there for tourists to see when they get excited about coming to see little furry animals. I thought that today we would remind ourselves that when we talk about biodiversity, it is living beings. They have a value, intrinsically from my policy perspective, but also extrinsically as features of our economy and as important drawcards to Western Australia. As I have briefly recapped, the need to protect Western Australia’s biodiversity through better legislation has been an issue that the Greens have long advocated for, for many years, with little gain. I am a bit perplexed and bemused that here I am speaking on the Biodiversity Conservation Bill at long last, after many years, and I feel quite privileged to be able to do that. I want to bring into the debate some facts and figures about what is at stake in Western Australia when we talk about our biodiversity. It is clearly important to those of us who live here and it plays a vital role nationally and internationally. I will briefly refer to the Australian government’s Department of the Environment and Energy biodiversity hotspots report. When people hear the term “biodiversity hotspot” they may think that means lots of different types of species living in a small area, but they might not actually recognise the significance of that term. Conservation International, a non-profit environmental organisation based in Washington DC, has identified more than 30 biodiversity hotspots around the world, including one in the south west of Western Australia. When I say it is in the south west, it is not actually down south; it is the south west corner. We sit here in the midst of that biodiversity hotspot. Our encroaching city and our urbanisation of this area is a reason it is a hotspot. It is a hotspot because our biodiversity is at risk due to how we live in Western Australia. Conservation International puts it this way — The unique biogeographic region of Southwest Australia, stretching from Shark Bay in the north to Israelite Bay in the south, covers over 300 000 square kilometers and is recognised as an international biodiversity hotspot. Separated from the rest of the continent by desert, the plants and animals in the hotspot have evolved in isolation for millions of years. As a result, the area is teeming with life—it is home to over 1500 plant species, most of which are endemic. These include the majestic marri and karri eucalypt trees that can grow to over 30 and 70 metres respectively. The hotspot is home to the endangered western swamp turtle—possibly the most threatened fresh water turtle species in the world. There are also several endemic mammals in the hotspot, including the numbat, which is a rabbit-sized marsupial anteater now endemic to the hotspot having disappeared from the rest of its range in Australia, and the Dibbler which had been thought extinct for 83 years. Land clearing, salinity, feral animals, weeds and the root-rot fungus Phytopthora cinnamomi threaten the biodiversity values of the hotspot. As I have mentioned, Western Australia is home to more than half of the biodiversity hotspots in Australia with eight of the 15 identified sites being in our state. I cannot help but lament what has been lost due to our inability to put effective legislation in place to protect our unique flora and fauna. Mr Acting President might be aware of the questions that I recently asked in question time that gave us the latest numbers for the species of fauna and flora presumed extinct and threatened in the past 15 to 16 years. The numbers are devastating. I will go into detail a bit later. Fifteen years ago, in August 2001, when work was beginning on a new biodiversity bill to replace the by then already archaic Wildlife Conservation Act, then Liberal MLA Bernie Masters asked the environment minister, Hon Judy Edwards from the Australian Labor Party, about the processes pushing WA’s plants and animals to extinction. At that time there were a total of 135 animal taxa—“taxa” means species—specially protected under the Wildlife Conservation Act 1950 as being likely to become extinct, that is threatened in WA, and a total of 337 plant taxa. Those figures were slightly different from the ones just provided to me but pretty much in the ballpark. The total number of flora species listed under the Wildlife Conservation Act as presumed extinct in 2001 was 22, and the total number threatened was 334. If I fast-forward six years to the Carpenter government, Western Australia had 14 presumed extinct species and 378 fell into “threatened”. I guess that means some of the extinct ones improved their status and went to “threatened”. In 2016 in Western Australia there are 15 presumed extinct species and 425 threatened species. In relation to fauna species, in 2001 there were 13 presumed extinct and 120 threatened. These numbers climbed astronomically by 2007 because the presumed threatened fauna species rose to 204 and the number presumed extinct rose to 18. It has climbed again because the recent 2016 figures show that 23 fauna species are presumed extinct and 245 are threatened. Today, as the Wildlife Conservation (Specially Protected Fauna) and Wildlife Conservation (Specially Protected Flora) Notices on the Department of Parks and Wildlife’s website state, a total of 245 animal species are considered threatened or likely to become extinct, and a total of 425 flora species are considered threatened— that is, likely to become extinct. In other words, in the 15 years that have languished since work began on this bill under successive ALP and Liberal governments, 110 more animal species and 88 extra plant species have become recognised as threatened. That may just be the best-case scenario because one of the problems scientists and environmentalists have long recognised in WA is that there is inadequate research funding and checking on the population status of many species and subsequently their threatened status is not always upgraded when it needs to be. Sadly, due to the addition last year of eight new species, 23 animals are presumed extinct in WA. That is 10 more than in 2001. These 23 animal species include molluscs and birds as well as a wide range of mammals including species of bettong, bandicoot, hare-wallaby, bilby, hopping mouse, potoroo and echidna. To keep members awake: on the topic of bilbies, I have with me the Chinese interpretation of the bilby. I have seen bilbies. This is a baby bilby. Hon Sally Talbot interjected. Hon LYNN MacLAREN: Does Hon Sally Talbot not agree? I would call this a baby bilby. I have never seen a bilby with that clean a nose! If any members want to — Hon Peter Katsambanis: Where was it made? Hon LYNN MacLAREN: I have already said; I think it is China. Hon Peter Katsambanis interjected. Hon LYNN MacLAREN: I know members will want these for their constituents! The ACTING PRESIDENT (Hon Simon O’Brien): Order! We can hear from only one member at a time, and that is Hon Lynn MacLaren. Do not wake the baby up! Hon LYNN MacLAREN: Thank you, Mr Acting President, because I know members are keen to know where they can get these adorable little Australian mammals. It is not easy to find ones with this detail of reality; it is one of the better quality ones. I found them at the Zig Zag Cultural Centre in the hills, if the minister wants to know. Hon Donna Faragher: Good advert for my electorate. Hon LYNN MacLAREN: It is in the minister’s electorate. Hon Donna Faragher: Do they have woylies, because woylies are my favourite? Hon LYNN MacLAREN: I think they did have woylies, but I have one more treat to show members to keep them awake. It is not a woylie, and I do not think it is the right size. I have never seen one of these, but I think it, too, is not to scale. Members can see bilbies if they go to the Barna Mia sanctuary in Dryandra Woodland. They are little bit bigger than this example and they are a lot dirtier, but I have a bilby to show members because we may not be able to see them in the wild unless we pass this bill and get some decent laws to protect our biodiversity. Now that I have members’ attention, I have to do something with it. In 2009 the Auditor General provided further evidence and analysis about the failings of existing legislation to adequately conserve our unique biodiversity and of the urgent need for a modern legislative framework. This is not the first time I have quoted from this report, and I will do so briefly because I hope that members who were elected in this term will have read it by now. I think it was tabled in the first days of the previous term of this government. Again, we have had this detail for a while. Hon Donna Faragher: If that is the Auditor General’s report, it was just after we came into government. Hon LYNN MacLAREN: Yes, it is the Auditor General’s “Rich and Rare: Conservation of Threatened Species” report of June 2009. Members can look it up on the Auditor General’s website. I want to refer members to what the Auditor General found when he looked at this. The report states — • Since 1987 DEC and its predecessor agencies have sought to replace the 1950 Wildlife Conservation Act with new legislation that would provide greater support for conserving biodiversity. • Current legislation does not include a process for listing species as threatened and for recovering those species. Instead, threatened species are identified and recovered using DEC’s internal processes, but these processes lack the transparency and accountability of legislated processes. Members might recall that the Biodiversity Legislation (Priority Reforms) Bill 2014, which I have tabled, included those specified processes. That is one of the key reforms that the Greens are calling for in biodiversity conservation. The Auditor General’s recommendations state — DEC should: • continue its efforts to replace the Wildlife Conservation Act 1950 with a new Biodiversity Conservation Act The ... Act restricts DEC’s ability to effectively conserve threatened species. The Wildlife Conservation Act 1950 ... is the primary Western Australian legislation for the conservation of threatened species. The Act is nearly 60 years old and does not support the majority of DEC’s threatened species conservation activities. In particular, the Act does not establish a process for listing and recovering threatened species and does not provide species with adequate protection. DEC has developed policies and processes to support its activities where legislation does not. However, the use of internal processes is less transparent and accountable than legislated processes. DEC has taken steps to update the Act; a replacement Act was first released as a green bill — Can members guess the year? — in 1992 We had a green bill in 1992. This is 2016, and we finally have a bill to debate, so I commend the government for giving us a bill to debate. The report continues — DEC has taken steps to have the Act replaced and was given approval to amend the Act in 1987. This goes back even further to 1987! It took from 1987 to 1992 get a green paper out. The report continues — This bill did not progress. In June 1999, approval was granted to draft a Biodiversity Conservation Bill. Although public consultation occurred and DEC has developed drafting instructions, a Bill was not presented to Parliament prior to the change of government in September 2008. Again, it is a special day that we are able to debate this bill. I want to talk about one of the case studies, which is the Swan coastal plain quokka. The report is not a big report and if members have a chance to review it, it is a commendable report. One of the case studies is the quokka. Hon Ken Travers interjected. Hon LYNN MacLAREN: It is not a quokka, Hon Ken Travers—keep guessing! The report continues — For several years DEC suspected that the last surviving quokkas on the Swan Coastal Plain were on private land north of Busselton. However, the owner of the land would not allow DEC access to confirm the existence of the quokkas. DEC recently confirmed that quokkas are on the property through the use of motion-sensing cameras on neighbouring DEC land. Despite confirmation of the quokkas’ presence, neighbouring landowners have cleared land and set fires, damaging the quokkas’ habitat. DEC is pursuing the landowners for illegal land clearing and fires, but is unable to take action in relation to the destruction of quokka habitat. This is one of the telling cases in which gaps in our legislation have caused devastating impacts on biodiversity. The report gives us an even more sobering insight into how long this legislation has taken to come to bear. Public servants have been trying to replace the Wildlife Conservation Act since 1997. For nearly 30 years there have been moves afoot to modernise legislation. How can it be that it has taken 30 years even to get a government bill into the chamber? It is clear that all sides of politics were keen on this and, in fact, the public servants had been given the go-ahead to draft something, yet a bill still could not get into Parliament. How can it be that the Labor Party and the Liberal and National coalition parties have shown so little regard for the environment and have not been held to account thus far? After having acknowledged the somewhat chequered history that has preceded the introduction of the bill before us, I want to focus on the content of this bill. I will give a brief overview of what I consider to be the strengths of the bill before outlining my concerns about other aspects of the legislation. Before I do, I thank the minister for allowing departmental staff to provide briefings on this bill to me on several different occasions. On the positive side, I am pleased that this bill contains provisions for members of the public to be able to nominate a species for listing as a threatened species and will allow for the listing of key threatening processes. These are two really important positive features. Under the bill, the taking of threatened species is treated differently from the taking of other species. That is a major change from the Wildlife Conservation Act that makes the taking of all species subject to the same offence provisions, although with some differences between flora and fauna. The introduction of a higher level of protection for threatened species, as against other native species, is very welcome. The major difference between the licensing regime for threatened and non-threatened fauna under the bill is that there is no defence to the taking of threatened fauna other than an authorisation under clause 40; therefore, an authorisation must be obtained for the taking of threatened fauna, even if the taking is an unintended consequence of another activity and that activity is separately authorised. This is an important protection mechanism. Part 4 division 2 of the bill creates a new and very significant regime for the protection of critical habitat. It gives the department the power to issue a habitat conservation notice to prevent habitat damage on private land, even if what is occurring on the land does not otherwise need approval and does not trigger an environmental assessment process. This is likely to be a very useful tool for protecting threatened species habitat. The obligation under clauses 49 and 53, enforced by criminal penalties, for consultants to report the occurrence of a threatened species also represents an improvement on the current regime. The Biodiversity Conservation Bill introduces other new offences. It provides that disturbing fauna or modifying a threatened ecological community will attract a penalty of $500 000 for a person and $2.5 million for corporations. The legislation applies largely in the same way to crown land and private land. The only substantial difference is that taking non-threatened flora on crown land requires a lawful authority or a clearing in accordance with section 51C of the Environmental Protection Act. Under clause 171 of the bill, taking non-threatened flora on private land requires only the permission of the owner–occupier of the land. This continues the approach under the Wildlife Conservation Act. Under clause 53, owners or occupiers who have been given notice by the minister that a threatened species or ecological community is on their land must advise visitors to the land who might impact threatened species or ecological communities. Under clause 52, owners must also advise the Department of Parks and Wildlife of any change of ownership or occupation. Clauses 56 and 141 provide that owners and sometimes occupiers issued with an environmental pest notice or a habitat conservation notice must advise when they cease to be the owner or the occupier. Conversely, the Greens have significant concerns about other aspects of the bill as well as the process around its drafting. We are extremely privileged in WA to have a strong conservation sector made up of many dynamic and talented individuals represented across a number of agencies. They bring to the table a wealth of experience and knowledge. In preparing my contribution to this debate I consulted widely with these people. I cannot say the same about the government ahead of the introduction of this bill. I have met with representatives of the Conservation Council, the Urban Bushland Council, the Wilderness Society, the cockatoo coalition, the Worldwide Fund for Nature, the WA Forest Alliance and the Leeuwin Group. I have named just a few of the people I have met. I have attended forums, presented on panels and convened a round table of experts in establishing our position. I have read the Environmental Defender’s Office briefing paper on the legislation and sought advice from others with a long history of environmental law advocacy. My point is that the process of engaging with and taking on board the feedback of those on the front line is imperative when drafting or considering legislation. We take that responsibility very seriously. Again, I cannot help but lament that the government has neglected to engage with the sector in a meaningful way on this legislation. We now find that we finally have the Biodiversity Conservation Bill before the Parliament, which has been roundly criticised by the conservation sector despite the inadequacy of the current archaic Wildlife Conservation Act. I want to take this opportunity to give voice to the critics of the bill. I will read a couple of media releases into the record. Many people will know Piers Verstegen, the head of the Conservation Council. He put out a press release on 21 March this year headed “Biodiversity bill must not allow extinction: Conservation groups”. It reads — Conservation groups have welcomed Premier Barnett’s statement that the government would accept amendments to new biodiversity legislation tabled for debate in the State Parliament this week. Without significant changes including specific provisions to prevent wildlife extinction, conservation groups say the Bill should be withdrawn. The Biodiversity Conservation Bill 2015 was initially welcomed by conservation groups after being introduced into the Parliament without consultation; however independent analysis by the WA Environmental Defenders Office has since shown that the bill falls well short of contemporary practice for environmental law. CCWA Director Piers Verstegen said “WA’s unique native wildlife is under huge pressure from climate change, land clearing, logging, mining, gas fracking, feral animals and other impacts. “Now is not the time for the Government to be putting forward half measures that will fail to address the decline of our unique biodiversity, or creating extraordinary new powers to allow Ministers to approve extinction. “There is no provision for an independent Biodiversity Authority, no requirement for scientific advice, no targets for wildlife recovery, and no requirement for the Minster to use any of the powers in the legislation or to publicly report on the condition of wildlife. Instead the Bill creates new powers for a Minster to play God by allowing the extinction of an entire species. This criticism has been repeated throughout the conservation sector and it has caught fire, if you will. It continues — Like the 1950’s legislation it seeks to replace, the Bill is full of loopholes and exemptions for certain activities and classes of animals. Wilderness Society Coordinator Peter Robertson said, “This Bill was drafted without consultation and contains many fundamental flaws and omissions. “In its current form it is not “fit for purpose” as 21st century biodiversity conservation legislation. The lack of any statutory public involvement, including third party enforcement rights, shows this legislation is outdated before it is even law. “In our view the legislation is so deeply flawed that it should not be passed unless there are major amendments.” “Arresting the decline of our native wildlife demands a comprehensive package of reforms including funding, increased protected areas, major changes to the management of forest and other public lands, and contemporary legislation,” concluded Mr. Verstegen. I want to read one more press release into the record, from around the same time, 20 March, headed “Proposed WA ‘conservation’ law could send state’s species to the point of extinction”. It reads — The WA Government’s Biodiversity Conservation Bill 2015, due to be debated by state parliament this week, is a retrograde step for WA’s environment and should be put on hold, WWF-Australia said today. The proposed new laws: • Allow the Minister to authorise actions that would cause a species to become extinct; • Fail to provide a strong emphasis on protection and enhancement of biodiversity; • Severely limit transparency and independent science-based decision making with excessive Ministerial and CEO discretion; • Increases fines for the killing of threatened species, but at the same time undermines this action by removing prison time as an option for the most serious of offences. WWF’s concerns follow from the WA Environmental Defender’s Office, which found the bill in its current form should be abandoned. WWF-Australia’s Species Conservation Manager for Southwest Australia Merril Halley called on the Government to put the Bill on hold, so that proper consultation could occur before the laws were changed. “New biodiversity legislation was an election commitment of the Barnett Government—a commitment that was supported in principle at the time by WWF,” Ms Halley said. “While the Government’s intentions appear to be good, and there are some good initiatives within the Bill, this proposal will amount to a “biodiversity conservation” law in name only. “The last thing any government would want to do is to undermine key protections for WA’s precious native animals, landscapes and plants—many of which are found nowhere else on Earth. But if passed in its current form, that’s exactly what this Bill will do. “By simply pressing the pause button and consulting with the community, the WA Government has a great opportunity to replace our state’s aging environmental laws with something much better—and we’re ready, willing and able to help them with that.” On the lack of consultation, I go back to what happened earlier today. On the steps of Parliament, Hon Sue Ellery and I accepted petitions on behalf of the conservation sector asking for this bill to be sent to a committee. I understand the complexities of receiving a petition on the day that a bill is being debated. It is a kind of last-minute thing, but members should be aware that there is a push to send this legislation to a committee and that the conservation sector is not happy about not being consulted. In fact, every time I have had the privilege of meeting with the department or the minister’s adviser to talk about it, I have brought to their attention that it would have been much better had the bill had been proceeded in a much more open and transparent way and that the conservation sector could have felt it had a stake in it. Be that as it may, on this day we find ourselves making second reading contributions to the debate on the bill with only 10 weeks left of this Parliament to progress the legislation. Hon Donna Faragher: Having said that, in 1992 the first lot of public consultation occurred—when I was in year 12. Seriously, there has been a great deal of public consultation at various times. I accept what you are saying about this specific bill, but there is absolutely no doubt that discussions surrounding the biodiversity bill have been ongoing for a number of years—as you have said, dating back to 1992. It’s about time you acted on it, and that’s what we’re doing. Hon LYNN MacLAREN: That position has been put and those two positions are out there. That is what this chamber is doing right now—debating those two positions. We can debate the two positions, but given our long history of advocacy for biodiversity conservation laws, the Greens would certainly not have progressed this bill in this way. Although we acknowledge that it has been a long road to get here, it is not the course that we would have chosen. I believe that with the input of experts in environmental law, we may have had a better bill before us—in fact, I can say that it would have been a better bill. However, this bill is before us, and I have to wonder what has made it so difficult to get it here. It is clear that many interest groups have been involved, which has curtailed the bill’s progress to this point. We do not know what interest groups they are. From my perspective, speaking up for the environment has been steadfast and longstanding, so one can only guess what other interests have curtailed it. My point is that the bill has now gone through cabinet and has come to this chamber after passing through the lower house, so it is really at the eleventh hour that we have to pass an update to the 1950s law. We want to make sure that it is the best we can do. At this point I flag that the Greens have amendments on the notice paper and that we hope the chamber will consider seriously and support those amendments to make this legislation better. As members know, I accepted a petition on the steps today. Tomorrow, I hope to table those signatures. Those signatures will have a course to take in this Parliament. I am very proud of the system in place in the Legislative Council to examine that petition. In this circumstance, the Standing Committee on Environment and Public Affairs will examine this legislation. The petition, on behalf of the WA Forest Alliance, requests that we hold up the progress of the bill so that it can be examined carefully and improved. I have read into the record two press releases that contain the serious concerns that the Forest Alliance wants pursued in the committee. The sector, in fact, is almost unanimously of the opinion that the bill requires extensive amendment and that these amendments should be developed in consultation with science experts, the conservation sector and the broader community. Lack of consultation is not only an issue ahead of the introduction of this bill, but also a weakness of the proposed legislation. The minister will have too much power and there will be no imperative for the minister to seek scientific advice when making decisions about threatened species and communities and threatening processes. This approach is out of step with other jurisdictions in Australia. For example, the Environment Protection and Biodiversity Conservation Act 1999 provides for a threatened species scientific committee. That committee is independent and made up of eminent conservation scientists. The committee provides the Minister for Environment with advice on matters relating to listing, conservation and recovery of threatened species and ecological communities, and listing and abatement of key threatening processes. The minister can make the final listing decision, but only after receiving advice from the scientific committee. One of the amendments that I have on the supplementary notice paper is directly related to this. In the equivalent act in New South Wales, the scientific committee is the final listing authority. The scientific committee’s rulings relate only to listing decisions, not to decisions relating to approvals. I would have liked something equivalent to these approaches within the WA bill. I do not know why we would not ensure that the minister is guided by expert advice, with every reason to ensure the involvement of scientists codified in this legislation. Another glaring omission in the bill before us is the lack of provision for a statewide strategy and, necessarily, monitoring. Currently, it is inordinately difficult to track trends in biodiversity over time in WA. That is something I hope to hear from Hon Adele Farina, who I know will be making a contribution on this, because during the term of the former Labor government, some significant progress was made in the state of the environment reports on monitoring the health of biodiversity. That is something that went by the way when governments changed. We could look at codifying that in this legislation and I think there is an amendment that may do that. Through the years, governments have attempted to do that through different approaches, such as the state of the environment report. However, that approach has been inconsistent and subject to the whim of politics. WA must catch up with the rest of Australia and put in place a mechanism to develop a statewide strategy and ensure that ongoing monitoring is undertaken. Legislation is not the only tool for doing this, of course. I am thinking here of the overarching Directions 2031 report. The minister representing the Minister for Environment is also the Minister for Planning, who would know well that there is a structure within that department in which there are overarching documents that set the tone and the direction. They go out to public consultation, get buy-in of all stakeholders and can produce quite detailed recommendations for planning. However, they are not in and of themselves legislative instruments; they are policy directions—overarching visions and strategies. That is lacking in the environmental policy area. I note that the Gallop and Carpenter governments’ approach was to try to seek out overarching strategies that could be monitored and tracked. The bill provides a mechanism to put in place environmental laws but it does not point to any overarching strategy such as that. There would be great benefit in that, as we see when we look at other states’ legislation. However, as I say, it does not necessarily have to be a legislative instrument as is the case in the planning system. Under the federal EPBC act, the Minister for the Environment has to take into account any state strategy when making a decision, but because WA does not have a strategy, the unique issues impacting WA’s biodiversity are not easily accessible in the federal assessment processes. I am thinking, Mr Acting President, that I might save my other furry animal in the hope that members might want to come back after the break, which we hopefully will get. They might still be wondering what I have in my bag. It is a threatened species and it is in the south west and, as I have said, it is out of scale. Of course, if anyone else wants to bring in their favourite ringtail possum, that, too, would be welcome. Hon Stephen Dawson: Do you want to give us a letter? Hon LYNN MacLAREN: No, I am not telling members the letter; that would give it away. As I said, when we are looking at what might be considered fairly detailed legislation that sets in place policies and procedures, the detail sometimes gets lost. I hope that we think about the impact of this legislation, which is hopefully that we will have these little furry animals long into the future and that our grandkids and their grandchildren can enjoy a bilby. Sitting suspended from 6.00 to 7.30 pm Hon LYNN MacLAREN: Just before we had our dinner break I made that point that the need for a strategy has been well-recognised. During the break I also took some time to pull up some of the most recent expert advice from scientists in Western Australia who are advocating for such a strategy. In fact, these are some of the people whom I have consulted with on the Biodiversity Conservation Bill 2015. I made the point that the strategy does not always have to be legislated for; there are other mechanisms. In fact, this particular group is calling for Australia’s south west to be given world heritage status. Professor Hans Lambers, who is head of a school at the University of Western Australia, and Emeritus Professor Don Bradshaw, also at UWA, published an article in February this year on their call for the south west to be given world heritage status. Many members might have heard of the Kwongan Foundation. I want to mention it here because previously I have mentioned that the internationally recognised biodiversity hotspots include several in Western Australia. This article puts the biodiversity of the south west in context with the global picture. It states — Southwest Australia is one of 25 original global hotspots for wildlife and plants, and the first one identified in Australia. Since the first analysis identifying biodiversity hotspots in 2000, the list has expanded, and now 35 hotspots are recognised, two in Australia: the Southwest and the forests of east Australia. Biodiversity hotspots are defined as regions “where exceptional concentrations of endemic species are undergoing exceptional loss of habitat”. As many as 44% of all species of native plants and 35% of all species in four animal groups are confined to the original 25 hotspots, which comprise only 1.4% of Earth’s land surface. [8] Extract from Hansard [COUNCIL — Tuesday, 16 August 2016] p4510d-4537a Hon Lynn MacLaren; Hon Rick Mazza; Hon Adele Farina; Hon Sue Ellery This opens the way for a conservation strategy, focusing on these hotspots in proportion to their share of the world’s species at risk. I will not read out all of the article but it goes on to refer to when Australia was part of the ancient continent Gondwana, which began to break up more than 154 million years ago. The bit that I want to put on the parliamentary record during the debate on this bill is this — Southwest Australia, also known as the Kwongan, is therefore an old landscape with a stable climate. It has not seen glaciers or ice for more than 200 million years. This has allowed species to evolve without the major extinctions seen elsewhere in the world. The region is about the size of England. England has about 1,500 species of vascular plants (all plants except ferns and mosses), 47 of them found nowhere else. Contrast that with Southwest Australia, which harbours an astonishing 7,239 vascular plant species, almost 80% of which are found nowhere else in the world. That got me thinking about how I came to Australia and was really taken with its biodiversity during my year as an exchange student in Albany. I was lucky enough to meet one of the wildflower enthusiasts of the region, Spike Daniels. Spike took me into the forest and he was the first person in Albany to show me a pitcher plant, which is a carnivorous species that belongs to its own family and is not related to any other carnivorous pitcher. I still have a photo of a pitcher plant from those times and also the pollen-eating honey possum, which we have talked about before. Members might be wondering if I have a honey possum stuffed animal in my bag. It is not a honey possum. I have already shown members the termite-eating numbat, which has a sentinel behaviour that is similar to that of the African meerkat. Some members then asked if it was the woylie, which is also known as a brush-tailed bettong. They were once very abundant in the south west but starting in 2006 suffered a dramatic decline—nobody knows why—and are now listed as critically endangered. This Parliament has considered many proposals for land use that affect the woylie and I have brought that up many times during debates about whether we should urbanise land or clear a forest. We often bring to the attention of Parliament the endangered species that are endemic in those areas, and the bettong and western ringtail possum are two of those species that we have raised. These two eminent scientists are saying that we can protect the south west forever. The articles states — Our main aim is to secure UNESCO World Heritage Listing for the entire Southwest Australian Biodiversity Hotspot, focusing on national parks and existing reserves, without impinging on farming, forestry and mining activities. UNESCO inscription would raise local awareness, offer better protection, and boost the tourism industry, which is worth billions to the state, with the “nature experience” one of the top drawcards for foreign visitors. At the time of the article, the scientists said — We’re hoping any WA minister for the environment or tourism will embrace the plan and wish to own it, as well as scientists. One thing is certain, without action soon, Australia’s most important biodiversity hotspot will be gone forever. At that time we were beginning to understand and get glimpses of the bill now before us. These were two scientists who had obviously seen over time the government failing to update its biodiversity conservation laws, and in their efforts to try to protect and preserve our biodiversity have called for world heritage status. That is another mechanism that is certainly available to us to protect our wildlife and plant diversity in those areas. Before we had our dinner break, I talked about the significance of a conservation strategy and noted the amendments on the notice paper that might establish such a strategy through this legislation. I can assure members that there is considerable support for that, but it leads me to another key concern that I have about the legislation, which is this lack of integration between other key environmental assessment processes and this Biodiversity Conservation Bill. Under this bill there is no enforceable requirement to take biodiversity or threatened species into account under the Environmental Protection Act 1986 or the Planning and Development Act 2005. Although the bill before us has provisions for listing threatened species and communities and to make recovery plans for them, these mechanisms do not serve to properly protect threatened species and communities if they do not have to be taken into account for decisions made under those other acts. It is up to the discretion of the decision-maker whether they choose to do so. Land clearing is a good example of this. I am flagging that I have another amendment on the notice paper to do with this very issue. Even if the bill before us is passed, there is no additional requirement to take threatened species or communities into consideration when issuing a land-clearing permit so long as the decision-maker has complied with the EP act. This seems to make no sense when considering that processes such as land clearing that have the potential to affect threatened species and communities do not have to make any reference to the objects of the biodiversity bill. The listing of the threatened species should trigger additional safeguards under the EP act. Integration issues do not apply only to state legislation. There are also implications on how the proposed bill would interact with the federal Environment Protection and Biodiversity Conservation Act 2000. Currently, this lack of integration between biodiversity law and environmental law in WA means that state environmental assessments need to be supplemented to meet commonwealth requirements. Further clarification is needed about whether the bill before us would change that requirement in any way. On the face of it, it would seem that the lack of a corresponding amendment to the EP act to ensure a formal process for considering threatened species would mean that this supplementation would need to continue. However, I note that in her second reading speech the Minister for Planning may have flagged a different interpretation from what I am saying. She said that the biodiversity management programs and the recovery plans provided for in the bill will provide — … opportunities for state management arrangements to be accredited under the commonwealth’s Environment Protection and Biodiversity Conservation Act 1999, meaning that operations undertaken in keeping with such arrangements can be exempt from approval requirements under the commonwealth act. This statement appears to foreshadow use of these new instruments as bilaterally created management arrangements under the EPBC act. I would like further clarification about the government’s position on this point. This could preclude the need for commonwealth approval of actions having a significant impact on threatened species, endangered ecological communities and listed migratory species otherwise protected under the EPBC act. If this is indeed the case, I would have concerns that the removal of the commonwealth role could be a step backwards for biodiversity conservation in this state without at least addressing the need for integration between the biodiversity bill and other relevant state legislation. I turn my attention to an aspect of the bill that has generated a great deal of concern amongst the conservation sector as well as being reported widely in the media, as quoted earlier in those statements from the media, and that is the God clause whereby the bill will allow the minister to provide approval for an action that would likely result in the extinction of a species or the destruction of a threatened ecological community. The clauses that allow for this provide the starkest example of how much discretionary power this bill puts into the hands of the minister of the day. Clearly, decisions of this magnitude should not rest in the hands of only one person. Although I support the fact that in this bill, unlike the Wildlife Conservation Act, the taking of threatened species is treated differently from the taking of other species, this benefit is all but cancelled out by the corresponding power of the minister, particularly given that the bill lacks mandatory considerations for the minister to take into account when making such a decision. In a bill that has biodiversity conservation at its heart, this is obviously problematic. The God clause is not the only part of the bill that lacks sufficient detail about how the bill will be implemented in action. It is a consistent theme throughout the bill that much of the detail is to be contained in regulations. This trend for putting more and more into the regulations is broader than just in this bill. I have made this point recently when debating other legislation, but it would be remiss of me not to draw attention again to the difficult position that this trend puts members of Parliament in. We cannot comment on what we have not seen yet and the substance of the regulations will greatly impact on our assessment of this legislation and its implementation. An example of this is the listing of threatened species. The Greens’ position is that the listing of threatened species should be according to the International Union for Conservation of Nature guidelines. I have been told, and I have been led to believe by government representatives, that this will indeed be the case. However, because it is not written into the bill, I have to rely on the government to act in good faith and ensure that this requirement is stipulated elsewhere in an instrument that will necessarily be much more easily subject to change than if the requirement had been enshrined in this legislation. Questions around how “critical habitat” is defined also fall into this category. The listing of critical habitat within this bill is subjective and open to ministerial discretion. Clearly, there must be provision for scientific input into decisions of this nature as well as clear definitions. We do not know whether these provisions are in place, because they are simply not contained in the bill. Resourcing is another core aspect that falls outside the legislative process but is nonetheless fundamental in determining the success or otherwise of the legislation achieving its objects. We can have the best legislation in the world, but if a government department is not adequately resourced or the resourcing is not prioritised correctly, the desired goal will not be achieved. We just know that is true. I had a quick look at compliance and enforcement in Western Australia to get a picture of what the department is managing to achieve in this regard because one thing I mentioned earlier in my contribution to the second reading debate is the need to continually monitor the health and wellbeing of our biodiversity. That means that sometimes we need to apply those penalties. The government has not taken the step of having jail terms as penalties, but it has dramatically increased the penalties in many cases throughout this bill. But looking at a jurisdictional analysis in Western Australia and compliance and enforcement, I want to put on the record some of the prosecutions under the Wildlife Conservation Act. In 2011–12, there were nine prosecutions under that act with 24 matters pending. A further 552 infringement notices and 435 cautions were also issued in this period. The environmental enforcement unit initiated 21 prosecutions, six of which are subject to final determinations and 15 remain before the courts. The Department of Environment and Conservation received 544 applications to clear native vegetation and made 492 decisions in 2011–12. Overall, 18 413 hectares were approved to be cleared and 39 hectares were refused. In Simpson v Department of Environment and Conservation (WA) a man was fined $2 000 for taking various reptiles contrary to section 16A(1) of the Wildlife Conservation Act. These reptiles included the pygmy python, blue-tongue lizard, death adder and Stimson’s python. A subsequent appeal to the Western Australian Supreme Court was rejected with no reasonable prospect of succeeding under section 9(2) of the Criminal Appeals Act 2004. In terms of examining the enforceability of provisions set out in the Wildlife Conservation Act, the number of infringement notices compared with subsequent litigation suggests that a majority of infringements are simply paid by the offenders. When the report was written, the Western Australian Department of Environment and Conservation was statutorily bound when issuing modified penalty notices to first-time offenders of a penalty no greater than 10 per cent of the maximum possible penalty. We also know that all environmental offences in Western Australia are dealt with in the local courts, which do not publish their judgements. Therefore, reasons for decisions appear online only when there is an appeal to a higher court, as happened in the Simpson case. The difficulty of prosecution remains, even with stiffer penalties. It would be good to hear the minister address how the government hopes to enforce the act if this Biodiversity Conservation Bill is passed. Resourcing is of particular relevance to us in WA where, since 2013, there have been overall staff cuts of nearly 20 per cent from the Department of Parks and Wildlife. Of that 20 per cent, the science and conservation division experienced the harshest cuts of all. At the same time, the Department of Parks and Wildlife has budgeted an extra $3.8 million for building and maintaining recreation sites, campgrounds and trails. In particular, I find it extremely ironic that the government is committing $600 000 to another campground at Dryandra Woodland, which is home to the numbat. Here is a soft toy numbat. It is home to the numbat. Hon Alanna Clohesy: That numbat? Hon LYNN MacLAREN: This numbat can go there. Several members interjected. The DEPUTY PRESIDENT: Order, members! Hon LYNN MacLAREN: When in December the listing for numbats changed from vulnerable to endangered — Several members interjected. Hon LYNN MacLAREN: I do have other ones; members just have to wait. Several members interjected. The DEPUTY PRESIDENT: Order, members! There is nothing like a furry stuffed animal to get everyone excited! Hon Lynn MacLaren. Hon LYNN MacLAREN: The point I was making was that in December, the listing for the numbat changed from vulnerable to endangered. The numbats are among a dozen mammals — Several members interjected. The DEPUTY PRESIDENT: Order, members! Hon Lynn MacLaren has the call and should be heard in silence. Hon LYNN MacLAREN: Numbats are among a dozen mammals that are at extreme risk. They live in the areas in which the government is spending a lot of money on tourist facilities but is not putting enough effort into conservation to protect their habitat. The DEPUTY PRESIDENT: Order, members! There are too many audible private conversations being held in the chamber, which is making it very well difficult for me to hear Hon Lynn MacLaren. I am sure Hansard is also struggling. Hon LYNN MacLAREN: I want to look at the habitats within the international hotspots that the federal government recognises. Members may realise that they have been to some of the biodiversity hotspots that have been internationally recognised. In doing so, I will introduce the habitat in which the next furry animal lives. Members may choose to interject at that point in time! The Fitzgerald River, that beautiful piece of coastal property along the south west coast of Ravensthorpe, is one hotspot. Other hotspots include the central and eastern Avon wheatbelt, Mt Lesueur–Eneabba, the sand plains from Geraldton to Shark Bay, the Carnarvon Basin, Hammersley–Pilbara and the north Kimberley of Western Australia. Members should not be surprised by any of those. The hotspot to which I want to pay particular attention is Busselton–Augusta. Madam Deputy President, you may know the area well having come from that region. The heathlands and scrublands of the coastal plains support hundreds of different plants per square kilometre—many of them endemic and endangered—and a wide range of native invertebrates. In the south, forests and woodlands with high rainfall are habitat for another highly diverse range of plants and animals. Overgrazing pressure, changed fire regimes and habitat fragmentation have the potential to affect the landscapes and threaten the viability of species such as the Carnaby’s black-cockatoo. Do members know what this one is? Several members interjected. Hon LYNN MacLAREN: Yes, this is also known as a chuditch. The chuditch or western quoll lives in that area and is recognised as being at risk. A brush-tail phascogale soft toy would be lovely. If anyone is interested, I would like to put my order in for Christmas. Hon Col Holt: You see them run around the south west quite often. Hon LYNN MacLAREN: You do? That is very good. Hon Liz Behjat: Are they all made in China? Hon LYNN MacLAREN: Does Hon Liz Behjat agree that the chuditch soft toy is out of scale when compared with the bilby soft toy? They should be the other way around. This is a gigantic chuditch and a baby bilby. These are just a few of the Western Australian mammals that we hope to protect through this biodiversity bill. Let us not forget what it is we are trying to do today. The area that the chuditch calls home has many cave systems with significant aquatic invertebrates found only in Western Australia. Changes in groundwater movement can potentially cause significant stress to the threatened cave communities. I wanted to bring that to members’ attention because it is relevant and timely. It is really important that we keep in mind that we are not talking just about pieces of paper or public servants who are charged with approving clearing permits or developers who want to subdivide. We are talking about this at this time, and it is important that we keep in mind that this has a real impact on our wildlife. Even with the ambiguity about what will be contained in the legislation and the resourcing aside, Australian environmental laws often provide governments a toolbox of regulatory options without any guarantees that the tools will actually be used. Australian biodiversity conservation laws are no different, as the Australian Network of Environmental Defender’s Offenders Offices stipulated in its report on its assessment of the adequacy of threatened species and planning laws. The report reads in part — While the laws in some jurisdiction look good on paper, they are not effectively implemented. There are a number of important legislative tools available for managing and protecting threatened species that are simply not used. For example, interim conservation orders and management plans are not utilised in Victoria, no native plants have been declared prescribed species on private land in South Australia, no critical habitats have been listed and no interim protection orders have been declared in Tasmania, and no essential habitat declarations have been made in the Northern Territory. Key provisions are often discretionary. Critical tools such as recovery plans and threat abatement plans are not mandatory. Time frames for action and performance indicators are largely absent. Madam Deputy President, I intend to conclude my second reading contribution very soon. In this context, however, the lack of agency-forcing requirements in the bill is of concern. Analysis by the Environmental Defender’s Office in WA suggests that consideration be given to stronger approaches that have been adopted in some Australian and overseas biodiversity conservation legislations, including duties on public officers to further the objects of the act; monitor the conservation status of biodiversity components—for example, threatened species—and report annually to Parliament; list threatened species and ecological communities after receiving advice from expert scientific committees; and periodically review such lists to ensure that they are up to date. Although the Biodiversity Conservation Bill 2015 represents a modernising of legislation relating to biodiversity, a number of aspects raise significant concerns and would even go so far as to be considered what I would call fatal flaws. The lack of provisions to ensure scientific input into listing decisions, the God clause, and the lack of integration with other environmental laws, all fall into this category. I have suggested some amendments to deal with the most critical issues that I have raised in my contribution to the second reading debate. Should those amendments be successful, I would think that the bill before us will be a significant improvement on our current biodiversity protections. It is an opportunity that we should not forgo, if we can update our biodiversity laws. However, there are, as I say, some fatal flaws. The Greens will support the bill if the amendments that are before us are successful. We believe there are adequate arguments to support those proposed amendments. It is imperative that we put legislation through that will be workable, will not give extraordinary powers to the minister, will involve the scientific community and will ensure that our precious wildlife and our tremendously valuable biodiversity is protected long into the future. What we have before us, in my view, is better than the current Wildlife Conservation Act. However, there are serious flaws in it and we would like to see those flaws addressed before giving it our support.

Authorised by Lynn MacLaren © 2018

Hon Lynn MacLaren MLC - Member for South Metropolitan Region (2009-2017)
Legislative Council, Parliament of Western Australia