«Staff present: Mr R Hansen (Research Director) Mr P Douglas (Principal Research Officer) Mr K Holden (Inquiry Secretary) PUBLIC HEARING—INQUIRY ...»
Brisbane - 40 - 3 Jun 2016 Public Hearing—Inquiry into the Vegetation Management (Reinstatement) and Other Legislation Amendment Bill Professor Bunn: Again, from a water quality perspective we know that there are major erosion problems in the Burnett Mary. These are the same problems and the same approach to fixing them that we see right up and down the Queensland coast. If you think of protecting the Great Barrier Reef in a warming climate, those small southern catchments will be increasingly important. It is interesting that the whole Mary Burnett River system is one that gets a bit ignored in the debate about the GDR, but I think increasingly that is going to become a much more important region to be tackling in terms of dealing with future climate.
Professor Catterall: It is noteworthy that the Brisbane River catchment is excluded from the current proposed amendments. As we detailed in our submission, there is very good reason to make sure that riparian vegetation in the Brisbane River catchment is retained and restored, although it is outside of what is currently being discussed.
CHAIR: Thank you very much for your time today and for answering our questions. I am sure we could sit here all afternoon if we had time.
Proceedings suspended from 3.03 pm to 3.08 pm
DEVINE, Ms Wendy, Policy Solicitor, Queensland Law Society DUNN, Mr Matthew, Government Relations Adviser, Queensland Law Society POTTS, Mr Bill, President, Queensland Law Society CHAIR: Before you start, I seek leave from the committee to table a document from the last group about erosion potential. There being no objections, it is so tabled. I welcome the Queensland Law Society. The Agriculture and Environment Committee’s public hearing in relation to its inquiry into the Vegetation Management (Reinstatement) and Other Legislation Amendment Bill is resumed.
Mr Potts, would you like to make a brief opening statement? Please be mindful that we are a little behind time so in answering your questions could you make sure they are direct and to the point, if possible.
Mr Potts: You are asking a lawyer to be short?
CHAIR: That is why I thought I would say it, Mr Potts.
Mr Potts: Firstly, I thank you all for the opportunity to provide observations from the Queensland Law Society on this bill. The society wishes to confine itself to three key issues only for the committee’s consideration. I wish to emphasise that by not commenting with respect to the full scope of the provisions of the bill we are not expressing endorsement or otherwise of the remaining provisions. Those issues are clearly matters for government and for other stakeholders. The Law Society would like to comment about the law.
For those of you who do not know, the Queensland Law Society represents 12,000 solicitors in Queensland. It is effectively the peak representative body. The society has a number of policy solicitors, and we are essentially about good law. Policy is always a matter for parliament, but we try to do our best to assist parliament in the making of good laws by, in essence, commenting, submitting and assisting. We are apolitical entirely.
We also want to make it clear that this society strongly supports persons who commit environmental offences being diligently prosecuted in accordance with clear and certain law. If you are an environmental vandal, then let us prosecute them. That is not our issue, but we are very concerned about the way in which the law is to be promulgated.
The society has a responsibility for furthering the society’s leadership of the profession through its advocacy for good law and by providing expert advice, positions and guidance for submissions for reform across the entire legal sector. I indicated to begin with that there are three issues, and I shall go to those. In the context of upholding the rule of law and the fundamental legislative principles, the society holds serious concerns in relation to three key aspects of the bill and the society wishes, with the permission of this committee, to extrapolate upon those further today.
The issues are as follows: one, the reversal of the onus of proof for vegetation clearing offences; two, the removal of the mistake of fact defence for vegetation clearing offences; and, three, the proposed retrospective application of some of the amendments back to 17 March 2016. I will deal with those seriatim if that is of assistance. Dealing firstly, therefore, with the reversal of the onus of proof, the explanatory notes suggest that it is justifiable that the bill reverses the onus of proof for a charge of unlawful clearing, placing the responsibility for unlawful clearing with the occupier—that is the term the act uses—of the land. That would include obviously the owner or the lessee of the land in the absence of any evidence to the contrary.
The society strongly considers that removing the presumption of innocence is unjust in the circumstances of this act. I understand from public comments that have been made today by the minister there has been commentary about this type of law where a deeming provision exists, and it exists for red-light camera offences, offences relating to being in possession of forestry products and the like. This, I might add, might take a few points off your licence and might end up with a very small fine. The penalties which this act deals with is up to five years imprisonment. The liberty of the people who are deemed to have committed the offence is clearly at stake. In addition to that, the penalty unit being $117.80 is somewhere around about $736,000. A conviction for this carries maximum penalties of five years and fines sufficient to effectively bankrupt or take away the farms of people who are deemed by law to have committed offences. We say without any shame that the proposed amendment is comparable to the former Newman LNP’s government stance with respect to the LNP laws. Deeming culpability in the absence of evidence and shifting the burden of proof is a highly serious departure from the fundamental legislative principles which are set out in section 4(3) (d) of the Legislative Standards Act 1992 which you are familiar with and which are set out in the discussion paper around the act.
Brisbane - 42 - 3 Jun 2016 Public Hearing—Inquiry into the Vegetation Management (Reinstatement) and Other Legislation Amendment Bill We regard this as a step backwards for justice in this state. It is a departure from well-established rule of law principles and must be thoroughly and rigorously justified if parliament is to move forward with it. We say it is a step backwards for justice in this state because, to use a graphic situation, let us imagine that any one of you as a committee decide it is a great idea to go away for the weekend—leave your constituency and perhaps come down to parliament. You go back and there in your backyard is a dead body. If this law was to be applied to those circumstances it does not matter that you did not kill the person. What does matter is that as the owner or the occupier of the land you would be deemed to have committed that offence, carrying substantial penalties including jail and fines.
Is that something that we really want to visit upon the people of Queensland? In most cases, of course, where you carry significant penalties there is required evidence of intent or knowledge— high degrees of recklessness and the like. That is absent here. It is simply a deeming provision— reversing the onus of proof and deeming a person to be guilty until they can prove themselves innocent. To move to that step is, in the society’s view, a step too far. It is anathema, quite frankly, and in our strong and respectful submission should not be moved forward with unless there was a proper justification for that.
We state that administrative convenience or prosecutorial efficiency, which is what, in essence, the discussion around the act is promoting to this parliament, does not justify erosion of the principle that a person is presumed innocent of an offence until they are proven guilty. I will interpolate at this point. For those who do not know me, I have been a practising criminal lawyer for 36 years. I have seen the rough end of the pineapple every single day. I state to you that in my experience, and I will get to that shortly, in the way in which this act may work, we have to be certain and sure that unintended injustices do not occur, such as the example I have previously given.
The recent task force headed by retired Justice Wilson in relation to the antibikie laws emphasised that it is unjust to remove the presumption of innocence which is a right which is enshrined in law for the protection of all Queenslanders. The content of this legislation we accept is different, but the issue remains the same. The presumption of innocence is a foundation principle of our justice system. Essentially, the reason given for taking away this fundamental right is to facilitate the prosecution of offences because of what the author of the document says is the difficulty of obtaining evidence. Two reason are cited. They are variously that the offence occurs in a remote area or that the accused refuses to hand over copies of contracts because they are ‘commercial in confidence’.
We, the society, consider that in the relevant provisions of the bill there is no justifiable reason or proof provided to reverse the onus of proof in this. The society considers that a more appropriate response to the perceived issues in prosecuting offences is to ensure that prosecutors are in fact properly funded and resourced so that a prosecutor can gather as part of the investigative process sufficient evidence to demonstrate at least to a court that an offence has been committed.
The legislation currently includes a range of investigation enforcement powers which are really those which we do not quibble with. They include significant powers such as the right to enter land, to require a person to give information or to produce documents relating to the clearing of vegetation.
If in fact, as the discussion alleges, a person claims, ‘We will not give you this document because it is commercial in confidence,’ then the parliament could clearly consider options to authorise investigators to have such access to documents. Subpoenas are well known. They are used. It is the easiest thing in the world to issue a subpoena for a document, whether it is commercial in confidence or not. If an offence of a serious nature relating to these things has occurred or is reasonably suspected of having occurred the document should be handed over and the simple giving of such a power is something that is well within this parliament’s power and is noncontroversial.
We state further that funding the timely and comprehensive investigation of offences is more just and a justifiable outcome than removing the presumption of innocence. What we need—and I am sure you are all going to pardon me for this, but I will say it anyway—is a clearing offence prosecutor— a COP. We need a COP with the resources and powers to hold those breaking the law to account.
If this is an important issue to government—and, of course, it is; it is an important issue to all Queenslanders; saving the reef is an important issue to all—then we need to ensure that the prosecution of environmental harm is given the importance that it deserves rather than simply trying to erode the basic tenets of our rule of law. Simply, you have better resources. There has been one prosecution in the last 12 months. I will get to what that might mean in a minute. Better resources for investigators, better prosecutors, quite frankly, better investigations and many of the concerns which this parliament may have and this committee may have are adequately dealt with without breaching that fundamental tenet of law.
Brisbane - 43 - 3 Jun 2016 Public Hearing—Inquiry into the Vegetation Management (Reinstatement) and Other Legislation Amendment Bill Can we go to that? The society is in fact aware that the Department of Natural Resources and Mines is in fact doing excellent work in relation to satellite image driven early detection systems which update images of vegetation every two weeks. The department has an eye in the sky. It takes photographs of every farmer’s backyard every 14 days. This is able to be compared and the easiest way is through computers.
The department’s eye in the sky can literally tell them when and where clearing is taking place and with fulsome powers for investigators how can the department literally not be able to obtain enough evidence to prosecute or at the very least form the basis of a warrant for entry to investigate and seize things when there are suspected offences? The first argument that is put there is that we need these things because they occur in remote locations—‘Gosh, it is difficult to get evidence.’ You get it easily every 14 days. That is not mentioned. The eye is sky works; use it for prosecutions. Use it to utilise the proper powers that the COP might have or be given.
In response to the reasons outlined in the explanatory notes, the society is of the view that the remote areas in which the offences of this nature are likely to occur do not preclude investigators accessing or collecting evidence. Displacing the expense and other resources by shifting this burden does not accord with natural justice. If environmental protection is seen as an important function of government, the investigation and prosecution of environmental harm should be well resourced and diligently prosecuted. A third party’s unlikelihood to clear property due to the expense involved in our view seems speculative and does not align with the established sound evidence based policy. A landholder’s right to provide evidence establishing innocence does not justify the onus being reversed. The state can neither, we state, by appearance nor actuality uphold its status as a model litigant if it seeks to transfer responsibility for disproving an offence to the accused. We say that the reversal of the onus of proof principle is inconsistent with the approach taken to other environmental and developmental issues which, in many cases, can in fact have more serious environmental or public interest impacts than the activities that are proposed to be regulated.