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Environmental values and the Rule of Law

 

Address to the AGM of the National Environmental Law Association 

13 October 2021

At all levels of government, Australia has a range of statutes, regulations, by-laws, standards, codes of practice, principles, international treaties, and other laws designed to protect the environment.

A law without a practical remedy fails to serve its purpose. Such a law also brings disrepute on the law as an entity.

There are many practical obstacles to enforcing environmental laws in Australia. I want to give a few brief case studies.

Trail bikes

Many years ago, my brother was bushwalking along the Alpine Walking Track on Mount Erica, part of the Alpine National Park.

He was shocked to see trail bike riders illegally riding through the bush, churning up mud, and causing a great deal of damage.

He took the trouble to go to Rawson police station to report the matter. The policeman there told him he would not do anything about it. He did not support the ban on recreational vehicles in the area, and would not enforce it.

There, in a microcosm, is the problem with many of our laws designed to protect the environment – they are useless if those charged with their enforcement will not do so.

Orange roughy

Orange roughy (Hoplostethus atlanticus) was first discovered in Tasmanian waters in the 1980s.

It is an orangeish-red fish, reaching a length of almost half a metre. The skin is poisonous to humans and its oil is powerful enough to be used as a degreasing agent.

Orange roughy is a long-lived and slow growing species. They take 20 to 25 years to reach reproductive maturity. They live for 100 years or more – with good evidence of ages over 150 years. They are found at considerable depth – hundreds of metres to over a kilometre.

The meat of orange roughy survives freezing and packing particularly well, and there is strong demand throughout the world for this fish. It is often marketed as ‘sea perch’. 

After initial minor catches, orange roughy was first commercially fished off Tasmania in significant quantities in 1989.

The fish were taken in greatest quantities whilst spawning, and the major spawning site in Australian waters is located east of St Helen’s at an underwater feature known as the St Helen’s Hill. This is a 400-metre-high pinnacle – or ‘sea mount’ – rising from a depth of 1000 meters. The fish formed a continuous ring, or ‘donut’, around the mount while spawning.

At times other than when they are aggregated for spawning over the winter months, orange roughy are sparsely spread over large areas of deeper waters off southern Australia. But when aggregated for spawning, orange roughy can be taken in large quantities in a very short time. When St Helen’s Hill was first fished, roughy were reported to enter nets at the rate of one tonne per second. It was a very lucrative species.

Because of the slow maturing rate and low reproduction rate of these fish, the stock will take an extremely long time to recover from overfishing. 

The fisheries authorities set quotas designed to preserve the fish – the focus being on the fishing stock rather than preserving biodiversity.

However, within eight years, orange roughy was commercially extinct in Australian waters, and the fishery had collapsed – a pattern all too often repeated in Australia.

The reason for the loss of the orange roughy was systematic, fraudulent under-declaration of catch by fishing enterprises.

In the late 1990s and early 2000s I was involved in a series of cases prosecuting both companies and individual fishermen for false statements to the Commonwealth about their orange roughy catch, and conspiracy to defraud the Commonwealth.

There were several convictions, and some jail sentences. 
·  Brinkman v Dix (No 2) [1999] TASSC 65

The cases were complex, and it was due to the dedicated work of a team of police and solicitors that these results were achieved. The work included careful reconciliation of a variety of records, as well as, in some cases, covert filming of the unloading of the fishing catch.

Critical in the orange roughy prosecutions was the fact that after each fishing trip, the holder of a fishing licence was required to file returns as to their catch. Our legal system understands the significance of making false declarations and statements. 

Requiring an active statement of this kind is very helpful for enforcement.

Hill and Henderson

On Easter Sunday, 2015, there was no work being done on any logging coupe in East Gippsland.

That day, Ed Hill and Joe Henderson entered a logging coupe, and conducted a detailed survey of logging operations. Their investigations soon showed that the contractors – under the control of the state-owned logging agency VicForests – had illegally logged protected rainforest. This was a crime.

Hill and Henderson prepared a careful report, documented with maps and photographs.

They submitted their report to the Victorian Department of Environment Land Water and Planning – the appropriate body to enforce the law.

DEWLP conducted its own investigation. They concluded that the rainforest had been subject to ‘unwarranted destruction’. They found that the destroyed forest area was large enough to meet the threshold of protection. They criticised the destruction of the rainforest trees – which had no merchantable value. There was no reason to destroy the rainforest.

However, they did not prosecute or otherwise enforce the law, other than to suggest that VicForests review its own guidelines. They said that, despite their own finding that a crime had been committed, a court might entertain a reasonable doubt.

The story does not end there. The Department then prosecuted Hill and Henderson for illegally entering a ‘Timber Harvesting Safety Zone’ – even though this was on an Easter Sunday when no one was put at risk.

Not only was it left to the community to properly oversee and enforce the laws protecting rainforest, but when they tried to do so, the community members were themselves charged with illegally entering this forest.

I travelled down to Orbost to represent these men. In the result the charges were dismissed, as there had not been proper compliance with the requirements to mark out the Safety Zone. This was a technical defence, of course, and as with so many such cases, the court was not able to deal with the substantive justice issues raised.

But the sequence of events illustrates a pattern that is all too common –  a public affirmation, by way of a law, that certain conduct was prohibited, but the private reality of one rule for those who seek to protect the environment, but another for those who are exploiting it.

 

Bob Brown and Heritage Rivers

Back in 1997-8, I represented Bob Brown – then newly installed in the Senate – on a charge of obstructing lawful forest operations. 

There were no such operations being conducted at the time, and he did nothing to obstruct logging, but we were nevertheless able to show that the coupe which he attended was not a lawful forest operation, as it encroached some 100 metres into a zone protected under the Heritage Rivers Act. 

·       DPP v Brown [1998] VSC 117

Again, no action was taken to prosecute those who had breached this law. Rather, the State government passed retrospective legislation to validate the unlawful logging.

Litigation to restrain logging

There have now been several cases in which environment groups in Victoria have successfully (and in some cases, unsuccessfully) litigated to restrain VicForests  – the Victorian government logging agency – from conducting unlawful logging operations. 

·      Environment East Gippsland Inc v VicForests [2010] VSC 335, per Osborn J

·      Wildlife of the Central Highlands Inc v VicForests [2020] VSC 10, per McMillan J

·      VicForests v Friends of Leadbeater’s Possum Inc [2021] FCAFC 66

The first two cases resulted in VicForests being restrained from logging. On appeal in the third case, the Federal Court found that although the logging was non-compliant with the legal requirements, and this was likely to have a significant impact on protected species, the logging agency had an exemption from the EPBC Act by virtue of the Regional Forest Agreement.

The sequence of cases has demonstrated systemic inadequacy – almost wilful blindness – of flora and fauna surveys prior to logging, and then no system to enforce potential breaches where they are detected. 

Victoria does have an Environment Protection Authority, but it is still left to community groups to take this difficult, expensive and of course risky litigation.

 

EPBC Act

In 2015 and 16, Tiphanie Acreman and I represented the Tasmanian Aboriginal Centre in EPBC litigation against the Tasmanian State Government over its plans to open Four Wheel Drive tracks through the protected Western Tasmanian Aboriginal Cultural Landscape – without approval from traditional owners and without seeking approval from the Federal Government under the EPBC Act. That litigation was, in the result, successful, and the proposal has this year been finally abandoned. I see Adam Beeson in the audience, and he was critical in this litigation.

The relevant Tasmanian Minister had informed the Commonwealth of the proposed action, but also said it was not referring the matter to the Commonwealth, as it did not consider that the proposed action would have any impact on the values of the protected area. The Commonwealth – perhaps with an eye to its political fortunes in the relevant area – did nothing.

·       Tasmanian Aboriginal Centre Incorporated v Secretary, Department of Primary Industries, Parks, Water and Environment (No 2) [2016] FCA 168

Aboriginal midden used as a 4wd jump in the Western Tasmanian Aboriginal Cultural Landscape

Under the EPBC Act, the Commonwealth often imposes conditions on approval, but the enforcement of these conditions is sporadic and relies on a co-operative approach. This is quite inadequate where large sums of money are at stake and the temptations to cut corners are real. 

Indeed, the Samuel review into the EPBC Act found:

The compliance and enforcement powers in the EPBC Act are outdated. Powers are restrictive and can only be applied in a piecemeal way across different parts of the Act due to the way it is constructed. The complexity of the legislation, impenetrable terminology and the infrequency with which many interact with the law, make both voluntary compliance and the pursuit of enforcement action difficult.

Strong, independent compliance and enforcement is required

Independent compliance and enforcement functions that are not subject to actual or implied political direction are needed. The functions should be properly resourced and include a full toolkit of powers and systems.

In these cases, in which environment groups undertake litigation to uphold the law, those groups are required, at great expense and personal risk, to go to court when it is usually the accepted role of the State to take action to enforce its laws.

So community groups often find themselves opposed by the resources of government, applied not to uphold the law, but for political ends. 

Where corporate interests are involved (as is usually the case), the corporate parties have the benefit of tax deductibility for their legal expenses, which is not true for community groups who are acting for the public good. In many cases, the risk of adverse costs orders means a real risk of office holders of these organisations losing homes and other assets. It is an extraordinary burden to impose on citizens.

The implicit model behind this is that the government sets out some broad aspirational principles, and then steps back to let those who might be referred to as ‘stakeholders’ fight it out. There is no level playing field: this is stacked in favour of those with the resources to litigate, and with the right political support.

But if that is the model, do our environmental laws really amount to laws as most people would understand them?

It is not enough for governments to espouse environmental values in legislation without establishing its own mechanisms to enforce those laws.

We have a systemic problem, at both State and Federal level, in which powerful interests are able to circumvent environmental laws, and governments have not put in place adequate independent means of enforcing the laws they have enacted.

 

The Rule of Law

The rule of law is one of the fundamental tenets of liberal democracy. 

Australia’s traditions as a democracy depend upon our adherence to the rule of law.

The rule of law doesn’t just mean having laws and requiring people to obey them – even tyrants have laws. Nazi Germany had laws – and a lot of them - but no one would argue that it was a society subject to the rule of law. The rule of law operates as a check on the arbitrary exercise of power. 

The rule of law is not about ever harsher laws to reinforce power, but the independent oversight of the exercise of power. Governments and corporations, like citizens, must be accountable under the law. The law must be clear, well-known and applied without fear or favour. Justice must be timely, efficient and independent.

Having laws to protect the environment that are only sporadically and unevenly enforced undermines not only the environment, but also, I would argue, the rule of law and our democratic traditions.

We should be astute to ensure – at all levels of government – that laws to protect the environment do not merely espouse values in a general way, but have specific enforcement mechanisms that give them teeth.

Protecting the environment is too important for us to accept anything less.