Rule of law

IPA report on the $1.2bn economic cost of green lawfare

The IPA’s recent report on how section 487 of the Environmental Protection and Biodiversity Conservation Act 1999 enables environmental activists to hurt development and job creation, was featured on the front page of The Australian today: 

Environmental groups’ legal challenges to development projects ranging from dams and roads to coalmines are estimated to have cost the economy up to $1.2 billion — an amount that is rising as more “vexatious and frivolous” claims are made.

The 32 legal challenges under the environment laws that went to court meant developers spent a cumulative 7500 days — or 20 years — in court even though 28 of the environmental cases were defeated and three required only minor technical changes to go ahead.

The Institute of Public Affairs estimates that the delays to the projects “cost the Australian economy as much as $1.2bn”.

The conservative think tank’s investigation into challenges to projects under section 487 of the Environment Act, which allows anyone with a “special interest in the environment” the right to challenge, found that environmental groups carried out “an ideological anti-coal, anti-economic development agenda” aimed at holding up projects to reduce profitability and investment.

“Given the high failure rate and frivolous nature of many of the legal challenges, it is clear it hasn’t been applied in the way ­initially intended and rather has been persistently abused by green groups whose primary motivation is an anti-coal agenda,” the IPA report says.

Drawing on Productivity Commission calculations, the IPA finds the use of section 487, which was introduced by the Howard government in 2000, “is estim­ated to have cost the economy ­between $534 million and $1.2bn”.

“This estimate is likely to underestimate the total cost to Australia, as it doesn’t capture all flow-on effects to employment, investment and higher capital costs,” the report says.

“Some projects never go ahead due to heightened risk of legal challenges and consequent higher capital costs.”

Continue reading the front page report here ($). You can read the full report, Section 487: How activists use red tape to stop development and jobs, here.

 

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Submission: National Integrity Commission

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Last week, Simon Breheny and myself sent this submission to the Senate’s select committee relating to the establishment of a ‘National Integrity Commission’.

Drawing on the historical experience with state level anti-corruption agencies, we argue that a “federal ICAC” would lack accountability, invite abuses of power and wield coercive powers which violate the legal rights of individuals.

Such a body would have characteristics that are inconsistent with democratic principles and the rule of law.

Read our submission here.

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IPA research: The state of legal rights in Australia is getting worse

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Great coverage ($) from Chris Merritt today in The Australian on new IPA research showing the declining state of fundamental legal rights in federal legislation passed in 2015:

The audit, by the Institute of Public Affairs, shows that federal statutes contain 290 provisions breaching legal rights, up from 262 the year before.

The attack on legal rights is ­focused on the privilege against self-incrimination where federal laws now contain 116 separate breaches of this privilege compared with 108 in 2014.

The fastest-growing category of breaches is laws that abrogate the right to silence.

The number of breaches of this right has more than doubled — up from 14 in 2014 to 33 last year.

“The long-term trend indicates that more legal rights are being breached over time,” said Simon Breheny, the IPA’s director of ­policy.

… While the Coalition government had raised expectations by commissioning an inquiry by the Australian Law Reform Commission into fundamental rights and freedoms, the government had not lived up to those expectations.

Mr Breheny believed regulators, bureaucrats and politicians still considered it legitimate to abrogate legal rights in the interests of regulatory goals.

“Over time, there has been an erosion of respect for the importance of common law rights and fundamental legal rights and this culture has led to a bureaucracy and political class that consistently undermines rights,” Mr Breheny said.

“Labor and Coalition governments are equally responsible and the failure of either side of politics to arrest this trend is deplorable.”

The IPA’s report, Legal rights audit 2015, can be accessed here.

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Queensland’s proposed tree laws are the very worst kind of red tape

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Today I have a piece in Queensland Country Life arguing the new proposed vegetation clearing laws in Queensland will halt economic growth, suppress entrepreneurship, and damage our international competitiveness.

The strict changes will also reverse the onus of proof, retrospectively enforce the laws back to 17 March 2016, and remove exemptions for clearing high value agricultural land.

This is the latest in a series of contentious political games between the left and right of politics, with farmers and land owners sitting in between:

Jointly understanding that clearing is necessary for growth, and that farmers have the incentive to protect and cultivate their own land, meant very few clearing controls prior to the 1990s.

However, as the 1990s came so too did the growth and spread of conservation campaigns. Legislation changes in 1999 and 2004 largely phased out broadscale land clearing by the end of 2006.

Thankfully, in 2013 the then Newman government relaxed the clearing laws. But now the Labor government, following through on an election promise, will take us back to the 2006-2013 era when almost no broadscale clearing occurred:

Of course the environment must be protected and conserved. But what happened to the importance of economic growth and development?

Effective agricultural regulation draws a reasonable line between environmental protection and agricultural production.

It is undeniable that efficient agricultural production requires the felling of trees. By entirely preventing such clearing—even for high value productivity land—policy makers have clearly lost sight of the real purpose of regulation.

The proposed bill has been referred to a state parliamentary committee, which is due to report in June this year.

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The competition regulator’s hobby horse

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Rod Sims, ACCC chairman, outlining the ACCC’s priorities for 2016 ($):

What we are trying to do is to get higher penalties awarded from the courts in competition cases because our concern is the penalties just aren’t high enough to grab the attention of company boards.

Sims, outlining the ACCC’s priorities for 2015:

The difference between a $10 million fine and a $100 million fine is quite profound. People will sit up and take notice, because it starts to show up in the profit and loss statement and it will grab attention, which is what we are trying to do with our deterrence messages.

It seems nothing has changed in the past year. The ACCC’s attempts to increase penalties which ‘grab attention’ are misguided.

Grabbing attention is what children do to their parents in toy stores. It is certainly not an appropriate enforcement objective for a regulator to pursue.

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Corporate regulator, corporate lobbyist?

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From the AFR today:

The corporate regulator used a confidential letter to tell senators the government’s plan to put more independent directors on superannuation fund boards did not align with the expectations of listed companies.

The letter from the Australian Securities and Investments Commission highlighted inconsistencies between corporate law and the government’s proposed rules for independent directors on super fund boards.

Apparently decision-makers at ASIC believe it is the role of the corporate regulator to lobby parliament. ASIC’s letter to senators during a contentious debate about the makeup of superannuation fund boards is inappropriate.

There are more fundamental reforms to superannuation that need to be made, but as I outlined in the AFR last week, the government’s proposal on independent directors represented a step in the right direction. ASIC should stick to its brief.

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“Unreasonable”, “unjust”, “oppressive maladministration”: ICAC slammed in this latest report

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Inspector of the ICAC, David Levine

ICAC Inspector David Levine issued a scathing review of the New South Wales anti-corruption watchdog, in a report tabled in NSW parliament today.

In particular, ICAC Commissioner Margaret Latham is taken to task for the Commission’s conduct surrounding the controversial investigation of Margaret Cunneen.

Frankly, it is fascinating reading. Here are just some of the quotes from the report:

… It is of concern that the Commissioner issued the Notices… “to attend and produce forthwith” [mobile phones already in ICAC’s possession] given that this in fact rendered them unlawful. This amounts to an abuse of power and serious maladministration. [Page 18]

… I did not yield to the Commissioner’s expectation, I am not subject to the Commission in any respect… [Page 23]

… I can only assume that the Commission at that time had a view that its “independence” was particularly fragile if just stating its obligations to keep the public informed of the steps it proposed to take…  was seen as threatening. [Page 34]

… I find the ICAC email to be insulting, condescending and to border on insolent and reinforces views I have late I have lately expressed as to the breathtaking arrogance of the Commission [Page 34]

… a total lack of understanding of the role of the Inspector… [Page 39]

… This aspect of the conduct of the ICAC I describe, and I believe any ordinary reasonable person would describe, as unreasonable, unjust and oppressive. [Page 51]

… it is another example of unreasonable, unjust, oppressive maladministration on the part of the ICAC. It was a last ditch stance of defiance and… reflects poorly on its standing and objectivity. It is an abuse of the powers reposed in it. [Page 56-7]

To read these quotes in context, read Levine’s report here. Or you can read more ICAC coverage on FreedomWatch here.

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Is this the next step, following mandatory data retention?

Draft national security legislation revealed last Friday would add little value to Australia’s efforts to combat terrorism, and will be a significant regulatory burden on the telecommunications sector.

According to the exposure draft, the Telecommunications and Other Legislation Amendment Bill 2015 would if passed compel carriage service providers to “do their best” to

protect telecommunications networks and facilities from unauthorised interference, or unauthorised access, for the purposes of security. Carriers and carriage service providers must notify changes to telecommunications services or telecommunications systems that are likely to have a material adverse effect on their capacity to comply with this duty 

Since such service providers would naturally “do their best” to see that their networks are uncompromised, it is unclear what is added by the bill. It is fuzzy law at best, and would be remarkably difficult for a person to know if they are meeting their legal obligations.

While the national security benefits are unclear, the proposed regulatory burdens are not. For instance, section 314A(3) of the bill requires carriage service providers to notify the government (the “Communications Access Co-ordinator“) of its intention to implement a change to telecommunications services. Sections 315A and 315B could potentially see the Attorney-General issue directions to carriage service providers to “cease using or supplying… carriage services” or “to do, or to refrain from doing , a specified act or thing within the period specified in the direction.”

From mandatory data retention, to online piracy legislation, 2015 has seen a suite of burdensome but ineffectual laws passed at the intersection of technology, telecommunications and national security. If passed, these new proposals would add to that list.

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Special treatment for environmentalists corrupts the rule of law

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Legal affairs editor Chris Merritt in The Australian today:

The next time some lobby group demands special treatment by federal law, keep in mind how things turned out when politicians caved in to green activists. It cost taxpayers dearly.

The losses are real but they are not the only problem. [A] fundamental tenet of the rule of law has been corrupted by the special treatment of green activists. The most obvious consequence is the ease with which these groups have been using the courts to delay major development projects.

By giving green activists automatic standing to challenge major developments, the politicians in Canberra have given them a level of access to the courts that is denied to everyone else.

This has made it possible for millions of dollars in taxpayers’ funds — and shareholders’ funds — to be lost.

Continue reading here.

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Senate committee backs push to remove special privileges for environmentalists

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This is from the Senate Environment and Communications Legislation Committee’s report of the inquiry into amendments which would remove the special privilege available to environmentalists to conduct activist litigation:

The committee also notes the arguments put forward by those supporting the repeal of section 487, such as the costs to proponents and consequences for economic activity when major development projects are delayed by judicial review sought by groups granted standing by section 487. The committee also acknowledges the significant cost of these challenges to the Commonwealth. The Department of the Environment indicated that it had not recovered costs in the majority of cases where the Commonwealth had been successful in defending the validity of a decision.

The committee considers that the repeal of section 487 will not diminish the protection of Australia’s environment and the conservation of biodiversity and heritage provided by the [Environment Protection and Biodiversity Conservation Act 1999]. … The committee recommends that the Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 be passed.

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