Regrettably, the Agriculture and Environment Committee were not able to reach consensus to support the passing of the Bill.
The Agriculture and Environment Committee tabled their Report on the VMROLA Bill on Thursday 30 June 2016. Regrettably, the committee were not able to reach consensus to support the passing of the Bill.
A number of recommendations were made, extracted at the bottom of this post for ease of reference.
Sadly the majority of the recommendations appear to have been made as a result of unfounded concern expressed during the Committee Hearing process. This includes the recommendation to omit the re-inclusion of the reversal of the onus of proof.
EDO Qld will provide responses to some of the recommendations made by the Committee below:
Reversal of onus of proof
The onus of proof was previously reversed in the Vegetation Management Act 1999 (Qld) (VM Act) prior to 2013, with the reversal relating only to the identity of the person who has undertaken the clearing. Similarly to the operation of speeding cameras and the assumption that it was the owner of the vehicle who was driving at the time, the owner of land is taken to have been the person who cleared the vegetation on their land unless evidence can be provided to prove that it was not the owner of the land. This is necessary to ensure that the Department is able to enforce the vegetation clearing offences, since the owner of the land typically has the most information as to their personal responsibility for clearing, or to prove that it was not them.
The Department has stated that it has suffered difficulty in obtaining sufficient evidence to prove a particular person was responsible for vegetation clearing given the typically isolated locations in which vegetation clearing is undertaken. EDO Qld support the onus of proof as to the identity of the person who cleared the vegetation being reversed for vegetation clearing offences to ensure that the VM Act can be properly enforced by the Department. This is an appropriate divergence from the fundamental legislative principles which is provided for in the principles themselves.
The fundamental legislative principles, which are set out in section 4 of the Legislative Standards Act 1992(Qld) (LS Act) and explained in the Queensland Legislation Handbook (Handbook), require that the onus of proof in criminal proceedings not be reversed to ensure that the rights of individuals are not unduly infringed upon, unless there is adequate justification.
The Handbook expressly states that the reversal of the onus of proof is justified in instances where ‘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 would be particularly well positioned to disprove guilt’.
The circumstances for which the onus of proof is reversed in the VM Act, as described in the above paragraph, fit exactly with this justification for diverging from the fundamental legislative principles by reversing the onus of proof.
EDO Qld, including solicitors who are members of QLS, does not agree with the views of the Queensland Law Society with respect to the VMROLA Bill. Read more here.
EDO Qld fully supports the government’s proposal in the VMROLA Bill to widen the application of offsets to any residual impact, and not simply ‘significant’ residual impacts. Since the Environmental Offsets Act 2014 (Qld) (EA Act) was introduced, the Department of Environment and Heritage Protection has stated that only 1 instance of vegetation clearing was subject to a requirement to offset impacts due to the high threshold currently under the Queensland offsets framework.
The removal of the word ‘significant’ from the EA Act ensures that the impacts of vegetation clearing, along with other environmental impacts, will more often require offsetting. EDO Qld does not support the offset framework currently in force, as it has not been demonstrated to provide scientifically viable and quality ‘offsets’ for environmental impacts, and is open to being used simply as justification to allow for impacts. However, it is still better that impacts are required to be offset with some attempt at balancing the environmental impact with another action, than the impact be allowed with no offset at all.
Self-assessable codes being review
Another recommendation relates to the review of the self-assessable codes which are provided for under the VM Act, and which often are responsible for the more significant clearing which has occurred in Queensland since their introduction in 2013. EDO Qld is a key stakeholder in the government’s review of the self-assessable codes, we provided a submission on the independent review of the codes undertaken by Cardno and commissioned by the Department, available here.
The government will shortly release a revised thinning code for public consultation, with further revised codes to be released for public comment through the second half of 2016. Stay tuned to EDO Qld’s website and social media for critique of the revised codes.
Recommendations of the Agriculture and Environment Committee Report on the Vegetation Management (Reinstatement) and Other Legislation Amendment Bill, tabled 30 June 2016.
The committee was unable to reach a majority decision as to whether the Bill be passed. The committee did, however, agree unanimously with the recommendations outlined in this report.
- Recommendation 1. The committee recommends that the Minister for State Development and Minister for Natural Resources and Mines explains to the House, during the second reading debate on the Bill, the consultation process that will be undertaken on the updated self-assessable codes, including details of who will be consulted.
- Recommendation 2. The committee recommends that the Minister for State Development and Minister for Natural Resources and Mines provides an update, during the second reading debate on the Bill, on the steps, including the associated timescales, that will be taken: to improve the accuracy of vegetation mapping, and to proactively engage with landholders to provide them with updated property maps of assessable vegetation which correct any inaccuracies.
- Recommendation 3. The committee recommends that the element of clause 6 of the Bill, which inserts new section 67A into the Vegetation Management Act 1999 to reverse the onus of proof in relation to vegetation clearing offences, be omitted.
- Recommendation 4. The committee recommends that the Department of Environment and Heritage Protection engage with the property, resources and development sectors to assess and establish the full impact of the proposed amendments to the environmental offsets regime in Queensland.
- Recommendation 5. The committee recommends that the Minister for Environment and Heritage Protection and Minister for National Parks and the Great Barrier Reef informs the House, during the second reading debate on the Bill, of the outcome of the assessment of the impacts, including potential costs, of the proposed amendments to the environmental offset regime and if any actions will be taken.