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«Staff present: Mr R Hansen (Research Director) Mr P Douglas (Principal Research Officer) Mr K Holden (Inquiry Secretary) PUBLIC HEARING—INQUIRY ...»

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Members present:

Mr GJ Butcher MP (Chair)

Mr AJ Perrett MP

Mrs J Gilbert MP

Mr R Katter MP

Mr JE Madden MP

Mr EJ Sorensen MP

Staff present:

Mr R Hansen (Research Director)

Mr P Douglas (Principal Research Officer)

Mr K Holden (Inquiry Secretary)





FRIDAY, 3 JUNE 2016 Brisbane Public Hearing—Inquiry into the Vegetation Management (Reinstatement) and Other Legislation Amendment Bill FRIDAY, 3 JUNE 2016 ____________

Committee met at 10.58 am POINTON, Ms Revel, Solicitor, Environmental Defenders Office CHAIR: Good morning and welcome everyone. I declare open the Agriculture and Environment Committee’s public hearing in relation to its inquiry into the Vegetation Management (Reinstatement) and Other Legislation Amendment Bill. My name is Glenn Butcher MP and I am the committee chair and the member for Gladstone. With me today are to my left Mr Tony Perrett, the member for Gympie, who is our deputy chair; to my right is Mrs Julieanne Gilbert, the member for Mackay; on my far right is Mr Jim Madden, the member for Ipswich West; Robbie Katter, the member for Mount Isa, is not with us at the moment but he should be joining us shortly; and Mr Ted Sorensen, is the member for Hervey Bay.

The bill was referred to the committee on 17 March 2016 and the committee is required to report to the parliament by 30 June 2016. Submissions accepted by the committee are published on the committee’s inquiry web page. Witnesses are not required to give evidence under oath, but I remind witnesses that intentionally misleading the committee is a serious offence. I remind those present that these proceedings are similar to parliament and are subject to the Legislative Assembly’s standing rules and orders. In that regard, I remind members of the public that, under the standing orders, the public may be admitted to or excluded from the hearings at the discretion of this committee.

Mobile phones and other electronic devices should now be switched off or turned to silent.

Hansard is making a transcript of today’s proceedings. The committee intends to publish the transcript of these proceedings unless there is a good reason not to. Those here today should note that the media may be present, so it is possible that you might be filmed or photographed. I ask witnesses to please identify themselves when they first speak and to speak clearly into the microphone and at a reasonable pace. I welcome this morning Ms Revel Pointon, a solicitor from the Environmental Defenders Office. Ms Pointon, would you like to make an opening statement?

Ms Pointon: Yes, please. Good morning, Mr Chair, and committee members. Many thanks for the invitation to appear before you today.

CHAIR: I will adjourn the hearing.

Proceedings suspended from 11.01 am to 11.08 am CHAIR: I again welcome Ms Revel Pointon, a solicitor for the Environmental Defenders Office.

Would you like to make a short opening statement?

Ms Pointon: Many thanks again for the invitation. I would like to start by quickly addressing the background behind this bill broadly and then I will touch on two legal points of issue with that there has been some confusion about, being the mistake of fact and the reversal of the onus of proof.

Firstly, I would like to remind the committee that these laws are not new. Our Vegetation Management Act evolved from 1999 to 2012 to provide broadly accepted laws that included a solid permit system, improved regulation of broadscale clearing and the introduction of the protection of high-value regrowth vegetation.

In 2012, with the election, the previous government committed not to change the vegetation laws, because there was such widespread acceptance of them. I understand even AgForce requested at the time an election policy that the vegetation management laws not be changed. Since then— from 2012 onwards—we saw some changes to our Vegetation Management Act, which the current government is now trying to rectify, mostly by reinstating the laws that had evolved from the regulation of vegetation clearing previously. The key point is that these laws are simply being reinstated—there is not anything really new—with the exception of the self-assessable codes. Obviously, these were introduced under the previous government and we have raised concern about those in our submission.

–  –  –

Further, the commitment that the current government has made to Queensland to restore these accepted laws was made to the international community under the Reef 2050 Long-Term Sustainability Plan. Also, in the current government’s pre-election commitments, their key tactic to address climate change was through a commitment to reintroduce the stronger vegetation clearing laws.

The two legal points I wanted to discuss today were the removal of the defence of mistake of fact and the reversal of the onus of proof. These provisions have been in effect since 2004 in our Vegetation Management Act. They were removed by the previous government, but while they sound controversial, there are some very good reasons they exist in the Vegetation Management Act as well as some other environmental frameworks. Firstly, the bill seeks to restore the reversal of the onus of proof, such that a landholder will be deemed to have undertaken clearing unless it can be demonstrated that the clearing was undertaken by someone else or that it simply could not have been the landholder if evidence can demonstrate that. This is seen to be necessary in regulating vegetation laws, simply because of the difficulty in obtaining evidence to discern who the person responsible at the time for the clearing was if the clearing has already happened, and often in extremely isolated areas in Queensland.

I know that the committee has heard the analogy of how this works with our speed camera system, whereby the government must assume the owner of the vehicle is the one operating it when it is caught speeding owing to the difficulty otherwise in proving who is driving the vehicle at the time on a camera. However, the owner can easily dispute this by providing evidence that it was not, in fact, them driving at the time. This is a well-accepted operation of our laws to ensure that the speeding laws are made effective.

The fundamental legislative principles, which are listed and explained in the Queensland legislation handbook, require that the onus of proof generally must not be reversed to ensure that the rights of individuals are not unduly infringed upon. We wholeheartedly agree with that. It is a recognised principle. However, the principles themselves expressly state that the reversal of the onus of proof is justified when a matter that is the subject of proof by the defendant is peculiarly within the defendant’s knowledge and that it would be extremely difficult or very expensive for the state to prove, or the relevant fact must be something inherently impracticable to test by alternative evidentiary means and the defendant themselves would be particularly well positioned to disprove guilt. This is expressly provided for in the principles discussed in the handbook.

The circumstances for which the onus of proof is reversed in the Vegetation Management Act fit exactly these circumstances. It is extremely difficult and expensive for the state to prove the identity of the person who cleared the vegetation and the defendant is particularly well positioned to disprove guilt. Further, it is only the identity of the person which is assumed, which is relatively simple to debunk by a landholder. The burden of proving the whole offence still sits with the government.

Finally, the second point is the removal of the defence of mistake of fact. This defence is normally provided in our Criminal Code in section 24. In operation, it means that someone can rely on the fact that they were mistaken as to the belief of a particular state of things at the time they commissioned the offence as opposed to the mistake of law, for which there is no defence under our law under the Criminal Code. In section 24, though, there also is a subsection that expressly excludes this rule from applying either directly or by inference under a law. The drafters of the Criminal Code clearly envisaged that, in some circumstances, there is justifiable reason for not allowing the defence of mistake of fact to apply. The exclusion of this defence from operating in the Vegetation Management Act is justified on the basis that landholders have been aware that there have been vegetation clearing regulations since 1999 that apply to their properties. It is particularly hard to demonstrate that a person was not mistaken as to a fact at the time of an offence being committed, as this is a state of mind. More importantly, the department has, to its credit, invested significant resources in helping landholders understand the vegetation clearing laws and how they apply to them.

It is known across Queensland that you cannot clear vegetation anywhere you like. Therefore, there is no reasonable application for this defence. Even if a map was wrong—and I know that is frequently the case and the department recognises openly that errors occur in the mapping and, therefore, provides a simple mechanism for rectifying these areas, which landholders can easily take up—even if a landholder was relying on a map that was incorrect that they had not verified with the department, on my interpretation of the law, they would not be able to rely on the defence of mistake of fact if it did apply, because this is a mistake of law. The laws are set in place as to which vegetation can and cannot be cleared and where. Therefore, it is up to the landholder to be aware of the laws Brisbane -2- 3 Jun 2016 Public Hearing—Inquiry into the Vegetation Management (Reinstatement) and Other Legislation Amendment Bill generally and to understand how they relate to the vegetation on their site. This is also not unique to the Vegetation Management Act as it applies to the Water Act and the Forestry Act, where the defence of mistake of fact is not available in certain circumstances.

To conclude, planning laws and environment laws both also operate to ensure that a landholder does not use the land in a way that harms the public interest through pollution, or inappropriate development, for instance. Equally, vegetation laws ensure that our vegetation is managed sustainably in vulnerable vegetation communities and ecologies are protected for the common good.

Thanks very much, committee and Mr Chair. I am open to any questions that you might ask.

CHAIR: In your statement you have said that you still have concerns about the self-assessable codes, which are in the act, and which this bill has not amended.

Ms Pointon: Yes.

CHAIR: Can you explain your concerns about the self-assessable codes that are still there?

Ms Pointon: Happily. The self-assessable codes were brought in under the previous government. They replaced a situation where permits would, I understand, usually have been required. Our key concern with them is that they are very vaguely and broadly defined in many circumstances. Particularly, the thinning and the fodder codes themselves are quite broad in their application and allow for quite broadscale clearing, which might not have necessarily been envisaged by the code itself. We recommend to the government that they are tightened to provide for more sustainable land use and not such broadscale clearing under these codes.

CHAIR: We did hear in our travels some concerns from the farming people that they thought the laws involved with the self-assessable codes were actually still too tough and they wanted them relaxed. It is sort of a bit opposite to what you are saying. They also said they were very difficult to understand and get a real understanding of what they can and can’t do and that they were quite strict, they still had to apply and get permission. Do you believe that the laws that are there under the self-assessable codes force the farmers to do the right thing or do you think that they are not the right laws to make them do that?

Ms Pointon: I would say we would prefer a permit system potentially. It might be clearer for landholders if there was a permit system because they could more clearly understand what is or is not allowed of them as opposed to self-assessable codes where, while they have to notify the department, they are left to interpret the codes themselves somewhat. We would wholeheartedly support a review of the codes that did clarify what was allowed and what was not allowed and prevented the broad-scale clearing that is often allowed maybe unintentionally through the codes.

Mr PERRETT: Welcome. We have been out on the road and we have heard a lot of passionate and sometimes emotional witnesses putting forward various views, including other legal practitioners who put forward a different view to what you have in respect to this. One of the things that has come through this process is the inaccuracy of mapping, I know you have mentioned that before, and landowners having to go about a process of proving the department wrong in some cases. In the first instance landowners do not receive advice from the department when the maps change. Is that something that you think that the department should do? When the mapping on someone’s property, be it a small lot or a large property, changes do you think that those landowners should be advised of any mapping changes and then potential issues that may come with that?

Ms Pointon: I guess it depends on the resources of the department at the end of the day. In an ideal circumstance it would be ideal that any landowner were advised of changes of the law that affect them, but I know that that probably would be quite a burden on the department to undertake specific notifications to landholders, if at least there could be some notification at a broad level. I imagine they probably do so on their website when laws or maps are changed as far as possible. I am not sure of that myself. Hopefully the department could clarify that. In a fantastic world where the department was given a lot of resources to do so that would be ideal.

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