«Staff present: Mr R Hansen (Research Director) Mr P Douglas (Principal Research Officer) Mr K Holden (Inquiry Secretary) PUBLIC HEARING—INQUIRY ...»
I dealt earlier on with the analogy that Minister Trad has used with respect to red light cameras and speed offences. They are what lawyers refer to as strictly liability offences. They have, generally, modest penalties. Environmental harm offences are not strict liability generally and involve significant penalties. There is simply no equivalence between the two and, with respect to the minister, it is like comparing a grape to a watermelon.
Just dealing, if I can, with that there is some reference to the Forestry Act in explanatory notes.
The Forestry Act 1977 refers to people being found in possession. That is not committing an act of environmental vandalism. It is being in possession of a seed, a pod, a piece of wood, some dirt or soil or whatever from a place. They are deemed to have committed the offence if they in fact fail to give an account to the satisfaction of an officer as to the manner in which they became possessed of such products, quarry material or earth. This is something which carries a penalty of approximately $10,000. We are talking about a quarter of a million dollars for these offences. You simply cannot compare them. It is just, with respect, not proper, appropriate and is a nonsense.
Can I deal with the mistake of defence for vegetation clearing offences which is the second issue. Criminal lawyers refer to this as the section 24 defence that is contained within the Criminal Code. It holds that, in essence, a person cannot be found guilty of an offence if they do so under the honest and reasonable but mistaken belief in a fact. We all know, and I will just tell you, that mistakes as to law are not defences.
The reason for that is that back in the old days in England where our laws were developed even though you could not read and write and you crawled out of the bog you were told what the law is every week when you went to church. I think sometimes in Latin, too. What you were told was, ‘Thou shalt not kill. Thou shalt not steal. Thou shalt not covet one’s ass,’ and all the rest of that wonderful stuff. Even if you could not read and write you knew that you could not nick the king’s deer from the park. These things were likely to lose your nose or your hand or other parts of your anatomy.
The end effect of it is that that is enshrined in principle. We know that mistakes of law do not amount to a defence. A mistake of fact does. The reason it does is because as humans we are fallible to making mistakes. We can make errors. The error can occur both in the perception of the person committing the offence or the error can occur in other ways. We know from computers that if you put garbage in you get garbage out. It is the same thing with laws, quite frankly.
It is also the same with maps. So let us imagine a situation where a diligent public servant creates a map and the map is wrong. It turns out to be wrong—one digit to the left, one digit to the right. The map is provided to the farmer. The farmer honesty and reasonably says, ‘Fine, that bit of brigalow over there and those gums over there are not on the map’, so he removes it. The map is Brisbane - 44 - 3 Jun 2016 Public Hearing—Inquiry into the Vegetation Management (Reinstatement) and Other Legislation Amendment Bill wrong. Take away this defence and that farmer gets prosecuted; deemed by law to be guilty until he proves that he did not do it. He cannot rely on the defence that, ‘Gosh, I was reading a map produced by some public servant’—no disrespect to public servants—‘in some remote place who is not on my property and does not see it.’ With respect, wars have started in Europe over wrong maps. Do we want to have prosecutions in Queensland over a wrong map? It is a fundamental right. It exists for a purpose.
When I look at the explanation in the explanatory notes, if there has been only one prosecution in 12 months where is the real evidence that is some kind burden on prosecutors? If someone raises it there are two parts to it. The belief first of all has to be honest. Honesty is something that courts assess. But secondly there is what we call an objective test—the test that lawyers throw in. It is not just about what I think. What I think is subjective, but what would an ordinary reasonable person, as the legislation used to refer to, as being on the Clapham omnibus—it shows how long ago the test was—a bystander, think? Was the person being both honest and reasonable—reasonable to themselves and reasonable objectively?
We say that that is simply good law, it is enshrined law, it has been in the Criminal Code as a defence since 1900. That is 116 years now. I can tell you from 36 years of experience as a criminal lawyer, it is not raised often and even when you do raise it it is hard to raise successfully because there is a two-limb test. The argument here is that the act says and explanatory notes say we cannot do this and we should remove that because the prosecutions are going to be a bit difficult. We know that they are not because of the eye in the sky and proof elements. If there have only been such a small number of prosecutions, where is the evidence that it is in fact having chilling effect on prosecutions? The acts only refer to the first limb—that is, the honesty. The actual test is twofold— honesty and reasonableness.
We say that although it is not a defence which is raised often it plays a very, very important role and it in fact prevents injustices. Can you imagine a court fining someone or being asked to fine someone, taking away their livelihood and imprisoning them because someone did not do the map right and they cannot rely upon that as a defence? How is that fair? How is that reasonable? Does it pass, quite frankly, what some people used to refer to as the sniff test, the pub test?
Our imploring submission to you is that this parliament and this committee would not find the removal of that defence to be reasonable at all. Indeed, the removal of it is not justified, in my submission, for lack of due diligence and wilful blindness in conducting land clearing. A concerted lack of due diligence with this intention is clearly going to preclude the employment of this defence because it is premised on both, as I have said, honest and reasonable belief. Removal, therefore, of the defence we submit does not achieve the explanatory notes’ stated objective, as the defence is based solely on an honest and reasonable belief in a fact—not in the law—and it has to be raised in all of the circumstances in the case by the defence.
CHAIR: Can I just step in there. This is very entertaining and it is taking quite a long time. We are on a very tight time frame here. If I could get you to get to the point, please. I think you can.
Mr Potts: We say that if information is readily available to landholders it will be difficult to demonstrate a reasonably held belief in the fact. The mapping information is accurate; we know that.
Not necessarily the maps, but the mapping information is, we hope. Accurate information is already available to all stakeholders, so we say that landholders should be able to rely upon that as a defence.
In those circumstances, we submit finally on the point that the removal of the defence is unfair and unjust when the key policy objective should be to ensure that the necessary information is available.
Then there can be no mistake as a fact.
The final point we make is in relation to the retrospective operation of amendments. The proposed retrospective application of certain amendments to 17 March 2016, which is when the legislation was introduced, have the potential to create significant complexity for determining clearing activities that are lawfully undertaken and a landholder’s ability to defend any prosecution relating to the transition period. Again we state it is a breach of fundamental legislative principles which is contained within the Legislative Standards Act, which provides that legislation should not adversely affect rights and liberties or impose obligations retrospectively.
The society acknowledges that the bill does not impose retrospective criminal liability on people who clear vegetation during the interim period; however, the information on the DNRM website suggests that although certain development applications can still be made after 17 March 2016, if the legislation is ultimately passed any clearing undertaken under those types of development approvals will become unlawful and restoration of the area will be required. Retrospectivity always introduces uncertainty, and the Queensland Law Society submits and considers that this is simply not justified.
I will pause to allow questions.
Brisbane - 45 - 3 Jun 2016 Public Hearing—Inquiry into the Vegetation Management (Reinstatement) and Other Legislation Amendment Bill CHAIR: Thank you very much. I am quite happy with your opening statement. It did go on for a while, so I do not have any questions.
Mr PERRETT: I just have one very quick question. Obviously we have travelled the state extensively listening to a lot of landholders, a lot of submissions and a lot of witnesses who have come before the committee. The three specific areas that you have mentioned today have been raised consistently. From your dealings are you hearing these concerns from landholders, the fear that they are going to be prosecuted and that this legislation could, as you have correctly identified, mean that some of these landholders lose their farms? There is a significant amount of concern, and I wondered whether that was feeding back through your society and what you are hearing as a layperson.
Mr Potts: Two things, member for Gympie: I am a city boy from the Gold Coast but with our 12,000 lawyers I have, during the period of my presidency, also travelled the entire state. I have spoken to our members, both within Brisbane who act for large groups, I have spoken to AgForce and the Queensland Farmers’ Federation, who I know are passionate about these matters. I have also spoken to solicitors in Townsville, Cairns and Mount Isa most recently two weeks ago, and I can tell you that there is considerable concern around these matters. When I say that our members act for people, the Law Society is not here over any specific interest, but I can tell you that people who are involved in these type of industries, who run farms, are concerned with their own properties and they are concerned about the environment. It is wrong to try and suggest that farmers are vandals.
They live on the land and they are working the land, but the people I speak to, the lawyers who are in great and close contact with their lives, suggest that there is a considerable chilling concern with the legislation as it is currently formed.
Mr MADDEN: I do not have a question, but I have to declare myself a member of the Queensland Law Society.
Mr Potts: Well done. I will not cancel your practising certificate on that basis.
Mr MADDEN: I have to declare that.
CHAIR: Thank you, member for Ipswich West. Thank you very much for your time this afternoon. I do appreciate the address you gave us.
HAYTER, Ms Frances, Director, Environment Policy, Queensland Resources Council KAVANAGH, Ms Chelsea, Adviser, Environment Policy, Queensland Resources Council CHAIR: Good afternoon. Would you like to make a short opening statement?
Ms Hayter: It is a pleasure to appear again. It has only been a couple of weeks since I was here last. We welcome the opportunity that you have given us to present here today. As you would be well aware, the QRC is the peak representative organisation of the Queensland minerals and energy sector, and our membership encompasses minerals and energy exploration, production and processing companies and associated service companies.
The key amendments to the Vegetation Management Act for the reinstatement of the vegetation management framework to more effectively manage clearing in Queensland, particularly in the catchments of the Great Barrier Reef, certainly demonstrates the government’s aim to capture more of the impacts associated with agricultural activities. However—and this is our biggest concern—the bill has, without any prior warning to the sector, strayed beyond its intent of amending the VM Act to revising the Environmental Offsets Act, a piece of legislation that has only been in existence for less than two years. This will have a major direct impact on the resources industry, and you will see that we have provided quite a series of case studies with some significant amounts of money in our submission. Because of this, we are not able to support the bill in its current form.
We must bring to the committee’s attention our concerns yet again with a bill that was rushed into the parliament in the absence of proper consultation. Again this has resulted in a missed opportunity for what could have been a sensible approach to address government’s intent of creating accountability for agricultural impacts without any unintended consequences for the resources industry. While the government is of the opinion, as we have been told by the minister, that the bill will not affect the resources sector, we do not support this view and it does not give our members any confidence. We are also aware that the government has not taken any assessment of impacts of the bill to industry.
The most fundamental concern is the removal of the significant threshold in the context of residual impact. I know that has been mentioned a couple of times today, and it is probably a slightly different topic from most of the ones you have been listening to so far. The removal of this test has the potential to remove the critical option of staging in the offsets act, as well as any minor modifications to an environmental authority, as similar to have to be reassessed when they have previously been determined that they would not have a significant impact on a matter of state environmental significance.