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12/05/04 Lesgislative Assembly 2nd Reading FILMING APPROVAL BILL Second Reading Debate resumed from 5 May. Mr MICHAEL RICHARDSON (The Hills) [7.33 p.m.]: I lead for the Opposition on the Filming Approval Bill. Members on this side of the House value the film industry and its contribution to the economy of New South Wales. We initially proposed that Fox Studios take over the old showground site at Moore Park. The Minister for the Arts in the Fahey Government, Peter Collins, got the ball rolling on that issue. We also believe very strongly that the film industry is a very good way to promote our State and country. Indeed, the Olympics provided the world with a terrific window to Australia, and did an enormous amount to increase the tourist trade to our city and State, which the film industry is perpetuating. More recently, Peter Jackson has had success with his trilogy The Lord of the Rings, which was filmed in New Zealand. It has done an extraordinary amount to promote that beautiful country to the world. In fact, it may have taken some tourists away from this country. We very much appreciate the contribution that the film industry makes to the economy of our State. The circumstances that led to the introduction of this bill do not give the Carr Government much credit. They tend to tarnish its green credentials and paint it as incompetent in finding locations for the film industry, and establishing certainty for a film that would have injected something like $60 million into the economy of New South Wales. The film that led to this legislation was Stealth, which is a film about a rogue stealth fighter plane and efforts to get it back. One scene was to have been shot at Mount Hay in the Grose wilderness area. Both Rob Cohen, the director, and Dean Semmler, the cinematographer, were highly enthusiastic about the location. In fact, Dean Semmler visited the location four times. They undertook an expensive and extensive review of environmental factors to ensure that the location could be utilised for the film. I visited Mount Hay two weekends ago at the invitation of the Blue Mountains Conservation Society. I thank Les Coyne, Allan Harris and Ron Withington for their help, and also David Noble and Simon Nally of the National Parks and Wildlife Service for their assistance at the site. Mount Hay is at the end of a fairly rough 15-kilometre dirt road. It is a spectacular part of the world and one that I would highly recommend honourable members visit. At the end of the road is a car park and a track leading west of the car park along a ridge line towards Mount Hay. There are hanging swamps on either side of this ridge and the southern one is a couple of hundred feet below the ridge line where filming was to take place. A significant raised decking structure, airlifted in by helicopter, had been built immediately adjacent to the swamp. The plan was to connect a cable between truss sections near this structure, and another on top of the ridge, and to run a camera known as a Spydercam between the two across an area of sloping heath land. This computer-controlled camera-a marvellous piece of technology-can simulate the viewpoint of a bird in flight or, indeed, a bullet zooming towards its target. A six metre by six metre helipad had been built to accommodate the helicopter, but had been dismantled by the time I arrived. The conditions of consent for this site were quite onerous, as one would hope, given that this was in a designated wilderness area. Some of the conditions of consent were as follows: Access to the swamp must be via the traditional access route identified by Department of Environment and Conservation [DEC] staff and marked with flagging tape instead of the route proposed in the review of environmental factors [REF]; the applicant must contribute to the cost of stabilising the additional access track; the placement of platforms and decking must be undertaken in consultation with DEC staff; the boundaries of the activity must be clearly marked; only actors, DEC staff and any person approved by DEC staff are allowed within the swamp; anyone within the swamp must wear soft and flexible-sole shoes, such as Dunlop Volleys; and shoes and clothing must be free of soil and vegetative matter. Further conditions of consent were as follows: No rehearsals are to occur within the swamp; after each take the actors must remain in situ until it is decided whether a further take is required; if a further take is required a Department of Environment and Conservation staff member will assess any damage from the take and either direct the actors to utilise the same line or to move to a line parallel to the previous line, both in respect of returning to the commencing location and to the next take; and the film company had to fund a threatened species officer from the Department of Environment and Conservation at the rate of $50 an hour for the duration of the activity. Given the way in which the Premier claimed the film industry throws money around, one would have thought that was a bargain. From what I have said, it can be seen that some very onerous conditions of consent were placed on filming in this area. On 30 April the Premier told Angela Catterns in a 2BL radio interview that this was "an authentic location" and that this location "gives the film the immediacy, the reality, the authenticity they want" and that "the experts have determined that's where they film an escape through a North Korean landscape". One can imagine how the Premier would have flayed any Opposition member had we said anything so ridiculous. What are we talking about-North Korea with gum trees? Clearly, there were alternative sites that could have been utilised for the filming of this climactic scene in Stealth. The Colong Foundation for Wilderness identified some 30 alternative sites that may have been suitable, including in the Newnes State Forest. Having visited the site myself, I could have nominated a number of other areas that could have been utilised, because the film crew was not filming the very spectacular scenery of the deep gorges and so on at Mount Hay in the Grose wilderness area; they were filming a shot that looked back up heathland to a ridge line. And, if you are only filming heath land you do not really need to go into the middle of a wilderness area to do so. However, the cinematographer and the director, having both visited the location, said, "That is where we want to film the climactic scene." Indeed, I think they were entitled to suggest that, given that it was the National Parks and Wildlife Service that had identified the location, and actually led them to the location. It was this Government that said they could use that location, and it was this Government that put a $130 million investment at risk as a consequence. That is absolutely disgraceful. The Premier also said: It would take a lot to persuade me to do anything that would degrade a National Park. However, what was proposed was that more than 70 people should be filming over a number of days at this location, which just happens to be home to two endangered species: the giant dragonfly, petalura gigantea, and the Blue Mountains water skink, eulamprus leuraensis. Lest it be thought that this is a laughing matter, the numbers of the giant dragonfly, which has a wing span of up to 130 millimetres, according to the New South Wales Scientific Committee, have been reduced to such a critical level, and its habitats have been so drastically reduced, that it is in imminent danger of extinction. So possibly 70 to 150 people would be traipsing through this swamp-where we know, from a review of environmental factors, this dragonfly has been found-potentially killing or destroying valuable habitat for this insect. The dragonfly does not recover very easily. The larval stage lasts from 10 to 30 years, and the larvae do not actually live in water; they live in burrows in the banks and are opportunistic feeders, coming out of their burrows to grab little insects and other passing creatures. They are very vulnerable to loss of habitat. The Blue Mountains water skink is not in danger of extinction, but it is an endangered species. It has a very restricted range of habitat. It is restricted primarily to the Blue Mountains, as the name suggests. It is currently known from 30 locations, extending from the Newnes Plateau in the north and west, to just south of Hazelbrook in the south and east. It is a high-elevation species, and is found only in isolated and naturally fragmented habitat of sedge and shrub swamps that have boggy soils and appear to be permanently wet. This also is an endangered species, and one that the world may lose if we are not very careful. The Premier said in his interview with Angela Catterns that: … truly sensitive sites where there is any chance of a risk to an endangered species would not be an area we would allow film-making in. Once again, the Premier would have flayed any Opposition members who had said something so ungrammatical, but those are his words. He subsequently effectively admitted that he had not visited the location. When a listener asked him whether the producers had cleared off some of the land in the park by burning off, he said: I don't think it is, no. Again, those are the Premier's words. If he had visited the site he would have known that no burning off had taken place and that indeed that could never have been allowed in any national park for filming purposes, let alone in a wilderness area. So here we have a Premier who prides himself on his environmental credentials but who not only was prepared to countenance filming in a wilderness area, contrary to the Wilderness Act that he brought into this Parliament in 1987, but who actively supported and encouraged breaking the law. The morning of that interview the Premier's brief was faulty in yet another area. He claimed that there would be no explosions at Mount Hay and that: They achieve those sorts of effects by pre- and post-production. They do not. According to the review of environmental factors, they were going to simulate explosions of bullets hitting rocks and so on: little explosives were to be sitting on the rock, with some powdered cork that would be thrown up when the explosion was triggered. There would also have been activity of a similar nature in the swamp area where the endangered species are found. I think it is right that we should put out the welcome mat to the film industry-but not at any cost. It clearly is not appropriate for filming to take place in any and every part of our vast national park estate-a point that the Premier himself conceded in that same interview on 2BL. Justice Lloyd of the Land and Environment Court, who found against Stealth and found filming could not continue at Mount Hay, was very definite in his judgment. He said that wilderness is sacrosanct. He based the judgment on the following line of reasoning. First, he did not believe that the production of a commercial feature film is provided for in the objects of the National Parks and Wildlife Act, nor in the management principles laid down in section 30E and section 5 (5) of the Act, which refer to "provision for sustainable visitor use and enjoyment, including appropriate public recreation". Second, section 151B of the Act enables the Minister to grant three-day licences over land within a national park, but only if the land is a modified natural area, which Mount Hay most certainly is not. Third, section 153A of the Act specifically forbids the Minister or director-general from granting a licence "in respect of land that is within a wilderness area". And, fourth, Justice Lloyd pointed out that the consent was said to have been granted pursuant to clause 20 (1) (d) of the National Parks and Wildlife Regulation 2002, which states that a person must not take a photograph, video, movie or television film for sale or hire or profit except with the consent of a park authority. However, a regulation cannot be inconsistent with the Act, and clearly allowing commercial filming in a wilderness area was forbidden by the Act. The judge also held that the proposed activity contravened section 9 of the Wilderness Act, and was inconsistent with the National Parks and Wildlife's own filming and photography policy. That was the bottom line of the judgment. The proponent held that what was happening was no different from allowing a sporting event within a national park. The judge said: While this may be a regular occurrence within a national park I am unaware of any sporting event within a declared wilderness area. Such an event would clearly be contrary to section 9 of the Wilderness Act. Honourable members probably would agree that the judgment was cast iron and that the Minister was clearly acting ultra vires when he or the other person to whom he gave delegated authority-Simon Smith, Deputy Director of the National Parks and Wildlife Service-gave permission to film at Mount Hay. The question is whether what has happened warrants the introduction of this legislation. The week the film company shooting Stealth was told that it could not continue to film at Mount Hay the Premier said he would introduce legislation to ensure that the filming could go ahead. Honourable members have heard the judgment. The film company probably took legal advice to the effect that an appeal in the Supreme Court was unlikely to succeed. When I spoke to representatives from the company they made it clear that they could not continue to pay $500,000 a day to wait indefinitely for an uncertain outcome. The film company needed to get on with the job. It had a schedule, which included filming in Thailand and elsewhere. It was important that it completed filming in the Blue Mountains and moved on. The Premier's claim that he would introduce legislation to ensure that filming would go ahead if the Supreme Court found in favour of the applicant, the Blue Mountains Conservation Society, was nonsense. I hark back to November last year when the Government introduce legislation to allow the waste company Collex to set up a waste transfer station at Clyde, overriding the decision of the Land and Environment Court. It seems that any time the Land and Environment Court hands down a decision that the Premier does not like, he is prepared to legislate to overturn it. But that is not the way the system works, nor should it be. In a sense it is contrary to the separation of powers. According to the Minister, the Government introduced the legislation because the Land and Environment Court specifically drew attention to doubts about the power to approve the making of any commercial feature film in any national park or reserve, whether or not the land in question is in a declared wilderness area, and because the court had drawn attention to doubts about the power to approve the making of any commercial film in a wilderness area that requires exclusive use of the area in question. However, others have not drawn those same conclusions from the judgment. The Act forbids, and has always forbidden, the making of a commercial film in a wilderness area. It is unnecessary to introduce legislation to make that clear. I do not believe that Justice Lloyd said commercial filming could not go ahead in a national park or reserve. The conservation movement has never challenged the filming of feature films under properly controlled conditions in national parks that are not wilderness. What is the rationale behind the Government's introducing the legislation? Is it, as the Minister said, because of doubts about the power to approve the making of any commercial feature film in any national park or reserve? Or is it because the Premier went public and, talking tough, said, "We're going to legislate to overturn any decision the Supreme Court comes up with that runs contrary to the filming of Stealth at Mount Hay"? I would hope that is not the case, but I suspect it may well be another example of the Premier saving face. The bill is quite brief. The conservation movement is concerned about clause 4, which sets out conditions for approving filming in designated areas, in other words in national parks, and I suspect with good reason. Subclause (1) of clause 4 states: A person proposing to carry out a filming activity in a designated area may apply to the relevant Minister for the area for approval to carry out the activity in that area. Subclause (2) states: The relevant Minister may, by order in writing, grant approval to any such applicant and such other persons as may be specified in the approval to carry out such filming activities in the area as specified in the approval. Clause 4 allows the Minister to grant approval, but nowhere does it say that conditions must be applied. Subclause (6) states: In determining whether to impose conditions on a filming approval to carry out a filming activity, the relevant Minister is to consider whether or not conditions should be imposed to ensure the following: (a) that the filming activity is carried out in a manner that minimises any adverse environmental impact on the area, (b) that existing roads, tracks, parks or other means of access to the area will be used by the approval holder wherever feasible, (c) that the location in which the filming activity is to be carried out is the minimum area that is feasible for the carrying out of such activity, (d) the period of time required to carry out the filming activity is limited to the shortest period that is feasible for the carrying out of the activity. It is pretty clumsy drafting. I cannot quite understand why the Minister should have only to consider whether to impose these conditions. I would have thought it was absolutely axiomatic that before approval was given to carry out filming in a national park the film company would have agreed to all of those conditions, in particular that the filming activity is carried out in a manner that minimises any adverse environmental impact on the national park. Subclause (3) of clause 4 states: The relevant Minister for a designated area that forms part of a wilderness area within the meaning of the National Parks and Wildlife Act 1974 may not grant approval for the carrying out of any filming activity in the area unless the Minister is satisfied that the activity is to be carried out for educational, scientific, research or tourism purposes. The conservation movement is concerned that "tourism purposes" is not defined in the bill. One could easily argue, for example, that The Lord of the Rings has been the greatest promotional tool New Zealand has ever had and, therefore, anything could be approved provided it promoted the State of New South Wales or Australia. That matter must be clarified. Clause 5 confirms that development consent is not required for development relating to filming. However, part 5 of the Environmental Planning and Assessment Act will apply. The determining authority has to consider the effect of the activity on, for example, any plan of management adopted under that Act for the conservation area to which the agreement relates and any joint management agreement entered into under the Threatened Species Conservation Act 1995. The determining authority should consider the effect on activity in any wilderness area in the localities in which the activity is intended to be carried out. The determining authority must also consider the effect of a critical habitat and, in the case of threatened species, populations, ecological communities and their habitats where there is likely to be any significant effect on those species, populations or ecological communities or on their habitats, and any other well protected native plants within the meaning of the National Parks and Wildlife Act 1974. That is fairly specific, but in his second reading speech the Minister said that review of environmental factors or an environmental impact statement would have to be carried out before filming approval could be granted. This is a real problem for the film industry. I hold up for the benefit of the House the 2½ centimetre-thick review of environmental factors that was completed for Mount Hay. It is a substantial document. It has been explained to me that the film industry might want to secure within one month a location identified for filming. But there is absolutely no way that the necessary work for a document of this size could be completed within one month. When the Minister's adviser, Ted Plummer, came to see me, I mentioned this issue to him. He said that it is not a problem because in many instances a half-page document will suffice. I have obtained a copy of a proponent's guidelines issued by the National Parks and Wildlife Service for the preparation of the review of environmental factors. The guidelines document is not quite as thick as the REF to which I referred earlier, but it is a pretty similar sized document. The issues that have to be considered in an REF include an eight-part test of significance to assess whether there is likely to be a significant effect on threatened species. There has to be consultation with the local council, adjoining landowners, leaseholders and the community. Consideration has to be given to the impacts on soil quality and land stability as well as impacts on watercourses and wetlands. A number of issues must be addressed, such as: Is the activity likely to change flood or tidal regimes? Does the proposal involve the use, storage or transport of hazardous substances? Biological impacts must be considered, such as: Is any vegetation to be cleared or modified? Does the activity have the potential to endanger, displace or disturb fauna or create a barrier to their movement? Is the activity likely to impact on an ecological community of conservation significance? Is the activity likely to have a significant effect on an endangered ecological community or its habitat? For the last issue, an additional eight-part test of significance must be completed and attached to the review of environmental factors. The list goes on and on in some 80 pages of guidelines. If someone seeking approval is adept at fitting the Lord's Prayer onto the head of a pin, he or she would probably be able to condense a REF down to half a page, but I suspect that most people would not be able to do that. Indeed, carrying out the requirements of the National Parks and Wildlife Service guidelines would clearly take a lot longer than the time frame referred to by the industry. The Minister and the Government must address that issue. Clause 6 has really raised the hackles of the conservation movement. Subclause (1) states: A filming approval authorises the approval holder to carry out in the designated area to which the approval relates any filming activity, in accordance with the conditions of the approval, that is specified in the approval even if the carrying out of that activity is prohibited or not permitted by or under: (a) the National Parks and Wildlife Act 1974, or (b) the Wilderness Act 1987, or (c) the Marine Parks Act 1997 ... Clause 8 allows the Minister to delegate his authority to "any member of staff of a government department, or ... any person, or class of persons, authorised for the purposes of this section by the regulations". Under this legislation, it would be possible for the Minister to delegate authority to a junior clerk in his department, or a trainee ranger, or perhaps a part-time cleaner, provided that he or she was on the payroll. I am not suggesting that the Minister would do so, but the legislation permits him to do so. I ask the Minister to clarify in his reply where such a broad-ranging power of delegation applies in other legislation. Clause 11 provides for the Act to be reviewed after five years. The Coalition believes that that is a sensible measure and we support it. In conclusion, I reiterate that the Opposition strongly supports the film industry. In the United States the National Park Superintendent determines whether filming will be permitted to take place, and no specification for wilderness applies. In New Zealand, filming which involves the construction of large-scale sets in regional parks is possible. That is certainly what happened for The Lord of the Rings. As I understand it, artificial watercourses were set up to create the scenes of Rivendell. Honourable members who have seen the trilogy may recall those scenes. Sydney competes against those two countries for film and tourism dollars. The Minister should indicate whether he will agree to the construction of large-scale sets in national parks. The bill certainly provides for that, but whether the Minister regards that as appropriate in a national park should be clarified. The Coalition not only supports the film industry but also supports conservation and the rule of law. Conservationists and representatives of the film industry have concerns about the bill. I believe that the same results sought to be obtained by this bill could have been achieved by amending the objects of the National Parks and Wildlife Act to make it clear that commercial filming is a sustainable activity in a national park. I do not think there is any need to legislate to clarify that filming in wilderness areas is illegal: The decision by Justice Lloyd has made that abundantly clear. This bill has all the hallmarks of rushed legislation. The Opposition does not intend to oppose the bill but suggests that it might well be better for the Government to withdraw it and reintroduce it when it represents a more workable solution to the problem that has been created by the decision against filming in wilderness areas of Justice Lloyd. Mr ALAN ASHTON (East Hills) [8.06 p.m.]: I am pleased to participate in debate on the Filming Approval Bill. New South Wales is fortunate to have a range of landscapes within our national parks that are diverse and spectacular. Our protected areas attract millions of visitors each year and increasingly our parks are coming to the attention of film-makers as both subject matter and locations for film projects. The people of New South Wales can be proud of the fact that they own places of such stunning visual power, and that the best Australian and international film-makers wish to capture that beauty. New South Wales is the centre of the Australian film industry: Most of the projects, expenditure and employment are located here. Sydney is a major film-making capital on the world map. Indeed, the Film and Television Office advises that the availability of locations in the national park estate has resulted in New South Wales securing films and television commercials that otherwise would have been made elsewhere. Honourable members may be aware that in the United States, American actors have been bagging the Australian film industry because they believe that it costs Americans jobs. It is well known that film-making in New South Wales offers great advantages to film-makers. The recent decision in the Land and Environment Court regarding the consent for filming of the movie Stealth in the Blue Mountains National Park has cast doubt on whether the production of a commercial feature film is permissible in a national park. The Filming Approval Bill aims to create certainty by giving the Minister for the Environment clear power to authorise the making of a film within the national park estate, subject to strict conditions to protect the environment. A similar power will apply to filming in a marine park. Commercial filming will not be permitted in a declared wilderness area unless the film is for scientific, research or educational purposes, or for the promotion of tourism. This is a necessary and sensible protective provision ensures that important conservation objectives are balanced with the needs of the film industry. In conjunction with the Department of Environment and Conservation's filming and photography policy, the bill will provide clear and consistent guidelines to ensure that filming activities within our national park estate are environmentally responsible. The Government recognises the importance of conserving our natural and cultural heritage and sustaining the environment for the appreciation and enjoyment of current and future generations. The Carr Government has always done so. This has been demonstrated through the careful management of our national park estate, which benefits from revenue derived from commercial filming to fund heritage conservation projects across the State. In the past financial year the Department of Environment and Conservation earned $188,510 in revenue from commercial filming. This is not to say that film producers will get the green light to film everywhere and anywhere-in fact, quite the contrary. For example, the Department of Environment and Conservation set clear guidelines for the makers of Mission: Impossible II, which involved community consultation, meetings with the local Aboriginal land council and adhering to specific guidelines relating to the protection of the environment and historic heritage while filming. Indeed, the production team was more than happy to comply with those requirements-a commitment to conserving our heritage, which means that filming in national parks is not a mission impossible. That film was seen by millions of viewers worldwide, a true international showcasing of the Sydney landscape. Visitation to the on-park locations associated with the film, such as Bare Island Fort, have increased since the film was made and have been carefully managed through guided tour programs, which also educate the public about the natural and cultural values of the area. Water Rats, an example of a serial television production, was filmed on Goat Island in Sydney Harbour National Park. As part of that production, contributions were made towards the maintenance of historic buildings on Goat Island. The provision of Water Rats tours increased visitation to the island, and raised the public's awareness and appreciation of national parks. The production also offered opportunities for actors. At the moment there is a frenzy to film reality television shows, which have little to do with reality and do not provide real work for Australian actors, directors or producers. I understand that the Department of Environment and Conservation refused permission for the filming of a $30 million Hollywood production within the highly significant and sensitive Towra Point Nature Reserve. The wetlands that are protected within that reserve are internationally recognised through listing under the Ramsar Convention and the reserve is home to a number of migratory bird species that are protected under international agreements. However, in refusing permission the department was able to draw the filmmaker's attention to an adjacent site, which suited his requirements perfectly without needing to enter the nature reserve. Filming in national parks is not all moviemaking. A number of important educational documentaries have been shot within New South Wales national parks. Wild Australasia, an acclaimed nature documentary series, was partially filmed in New South Wales national parks. The series attracted up to 1.4 million viewers in Australia alone and was also screened internationally. Southern Exposure was a fascinating four-part series screened by the ABC, which followed a number of the Department of Environment and Conservation's management issues in Kosciuszko National Park, including wild dog and wild horse management, park management works, and search and rescue in the high country. That series was not only education-based but was a valuable vehicle to promote public appreciation of the park's values and of park management functions. Filming in our national park estate is also important for regional tourism. Many tourists visit the Blue Mountains and experience the spectacular IMAX film, The Edge, which showcases the vast wilderness of the Blue Mountains and Wollemi National Parks. The film enables tourists to gain an insight into the spectacular, wild and scenic values of that world heritage area without them having to trek into the park. Other important tourism initiatives that have included filming in national parks includes the Feel Free New South Wales tourism promotion and even in-flight tourism videos shown by major international airlines. Millions of people around the world can develop an appreciation of our national park estate and their environmental values through film, even if they will never visit those areas. National parks offer diverse and unique landscapes across the State, from harsh desert terrain around Tibooburra and Broken Hill-where one of the Mad Max movies was made many years ago-to lush green rainforests and waterfalls at Dorrigo National Park. Filming allows us to showcase those amazing natural and cultural aspects of our State to a wider audience, which encourages people to seek those experiences as visitors. That allows us to educate a wider audience about our natural and cultural history, and the importance of conservation. This bill is an essential step in ensuring that this valuable filming in national parks may continue. I commend the bill to the House. Ms CLOVER MOORE (Bligh) [8.13 p.m.]: I oppose the Filming Approval Bill. The bill is designed to facilitate commercial filming in national parks, wilderness and marine park areas. This bill gives full discretionary power to the Minister for the Environment to approve commercial filming in national parks and wilderness areas. It shockingly overrides all existing legislation designed to protect conservation areas. Under this bill, filming will be approved on the basis of the category of film, rather than the level of environmental impact. It favours filming interests above the environment. There is no obligation for the Minister for the Environment to abide by existing legislation such as the National Parks and Wildlife Act, the Wilderness Act, the Threatened Species Conservation Act and the Marine Parks Act. Such overriding and discretionary powers to the Minister create a significant threat to conservation areas. The bill sets up an undemocratic, conflict approach to filming in conservation areas. There are no community appeal rights. If the community opposes an approval by the Minister there is no legal recourse. I am concerned that the bill will create further pressure for commercial activities to seek similar provisions for their operations also. The bill potentially opens up a range of commercial activities in national parks under the discretion of the Minister. It is sad that this bill has been introduced, because there is no need to establish new legislation: current legislation is adequate. The National Parks and Wildlife Act currently allows filming in national parks, as long as it abides by the Act and is in keeping with park values. How could any member of this Parliament challenge that? Numerous films, such as The Edge, The Man from Snowy River and Lantana were shot in national parks using appropriate, existing controls. Environmental groups-including the Blue Mountains Conservation Society, the Colong Foundation for Wilderness and the National Parks Association-have contacted me expressing their strong concerns about the bill. The recent incident involving Stealth was unlawful and it should remain illegal to risk wilderness areas. There is no provision for a licence under the National Parks and Wildlife Act in a wilderness area. The Government was responsible for the recent Stealth controversy because it did not abide by its own laws and properly educate the film industry. The Department of Environment and Conservation granted an illegal licence to film in a wilderness area and told Talons Productions that the proposal was legally permissible. The department provided wrong information: filming is not allowed in wilderness areas. The whole incident could have been avoided if the Government had properly abided by its own laws and advised Talons Productions correctly. The advice was too late. The department issued the final approval for consent the day before Talons Productions was due to start filming operations on 26 April 2004. Talons Productions should have received its approvals well in advance of operations, especially for a controversial film shoot in the wilderness. Talons Productions should also have had a contingency so that $500,000 per day was not lost. Justice Lloyd of the Land and Environment Court found, "The governing consideration in the present case is that declared wilderness areas are sacrosanct." That is a proper finding. The Department of Conservation, Talons Productions and the Minister for the Environment shockingly lodged an appeal to overturn that sound judgment. The Premier announced that if the appeal was not successful, he would introduce special legislation to override it. The whole incident was breathtaking-incompetence followed by the intention to overturn legislation set up to protect wilderness. The film company soon found another location in the Blue Mountains, which was not at all surprising, and the appeal was withdrawn. This bill is not only wrong, but unnecessary. Only 2 per cent of New South Wales is wilderness, so prohibiting filming in wilderness does not present a threat to the film industry. There are four million hectares of national parks outside wilderness areas, where commercial filming is allowed under the National Parks and Wildlife Act. It will be possible to find suitable filming sites within those areas that do not threaten or impact on significant wilderness areas, world heritage or endangered species habitat. Filming and environmental protection of wilderness areas are not mutually exclusive. I support the film industry and the selection of suitable sites should be conducted in consultation with government and the community and in areas with little threat to significant conservation areas. Environment groups and the general community have no intention to disrupt the film industry, about which we are all very proud, or to drive it out of national parks. The Government has exaggerated the impacts to the film industry of the recent Stealth controversy in an attempt to dissolve environmental protection controls for filming. I call on the Government and the Minister to work in consultation with both the film industry and the community to explore suitable filming sites, rather than set up an adversarial approach. Filming is currently allowed in national parks so there is no need for new legislation that allows filming in high conservation areas such as wilderness and endangered species habitat. I call on the Premier and the Minister to commit to the protection of wilderness and conservation in national parks by supporting the current legislation and withdrawing this bill. Ms LINDA BURNEY (Canterbury) [8.19 p.m.]: The Filming Approval Bill was introduced to allow filming within the national park estate and in marine parks, subject to the imposition of strict environmental conditions. I have received in my office a number of emails from people who are opposed to this bill. I am astounded by the hysteria surrounding this bill and the misinformation that has been peddled about it. This Government strongly supports the development of the New South Wales film and television industry, which is worth $4 billion a year to the State economy. National parks, with their unique diversity and stunning landscapes, are a key factor in attracting both Australian and international film industries to New South Wales. The Government is of the opinion that filming is an appropriate activity within our national park estate. The Minister for the Environment said earlier in debate that this issue is not new. Many of the iconic films and television shows that we watch have been filmed in our national parks and there has been no major outcry about that. Filming that is permitted in the national park estate or in marine parks will be subject to strict environmental conditions. This bill has been carefully drafted to enable filming to take place within these special places in certain circumstances, whilst ensuring that environmental protection is paramount. We should sit back, take a deep breath, take a minute to reflect on our track record and remember that the Minister for the Environment said that this activity is not new. We have been careful to ensure that we protect our national park estate and marine parks. A quick look at the Carr Government's track record in the establishment of national parks and reserves reveals just how ludicrous is the hyperbole and hysteria that have been peddled by Opposition members about the devastating effect that this bill will have. Let me outline how this bill will ensure no such outcome. The Minister or his or her delegate will have the power to impose appropriate conditions when issuing film approvals. That may include imposing conditions to ensure that filming activities are carried out in a manner that minimises or eliminates adverse impacts on the natural or cultural values of an area and existing means of access are to be used, where feasible. In addition, the area and the period during which filming is to be conducted may be restricted. Opposition members believe that we are prepared to compromise this Government's fine track record in relation to the protection of national parks in order to make a quick dollar. Filming proposals will be subject to an environmental impact assessment under part 5 of the Environmental Planning and Assessment Act 1979. That means that the Minister will require the preparation of a review of environmental factors or, if needed, an environmental impact statement, which are fairly high bars to jump. The bill will ensure that the special values of wilderness are protected as filming will be allowed in these areas only for scientific and educational purposes, or for the promotion of tourism, and they will be subject to the strict environmental conditions that I mentioned earlier. Even then the activity will have to be consistent with the wilderness values of a particular area. Let us reflect on that for a moment. It would be disastrous if we were not allowed to make documentaries or educational films in these areas. The bill will ensure the protection of the cultural values of national parks. For example, where filming may be proposed in Aboriginal co-managed national parks, the concurrence of the board of management for those lands must be obtained prior to granting any approval. That will ensure that the views of Aboriginal owners are respected in these areas and that Aboriginal sites are protected when filming occurs. The filming and photography policies of the Department of Environment and Conservation will strengthen these statutory safeguards to ensure that filming activities do not compromise the special values that are protected by our national park estate. To ensure consistency with the new provisions that will be introduced by the bill, that policy will be reviewed as a matter of priority. The film industry has not resisted these safeguards; it has enthusiastically embraced them. In recent years in Sydney a number of movies have voluntarily commissioned professional environmental advice to ensure that they would cause no environmental harm. The film industry has proved itself to be a great advocate for the environment. I highlight the fact that the Land and Environment Court did not make any adverse finding regarding the environmental impact of the filming of Stealth in the Blue Mountains National Park, thereby vindicating the thorough environmental assessment of the Department of Environment and Conservation [DEC] in that case. Some of the arguments that we have heard are ill-informed. Some people are not aware of what this Government is attempting to achieve through the introduction of this piece of legislation. This bill, which is practical, is in response to the findings of the Land and Environment Court. The Government has had years of experience in the management and care of our national parks. We must ensure that national parks are an educational tool that can be used to show the rest of the world how important they are and what a fantastic place Australia is. All those elements have been taken into account in this bill. It is ludicrous to suggest that the Minister would prostitute our national parks to the film industry. I commend the bill to the House. Mr BOB DEBUS (Blue Mountains-Attorney General, and Minister for the Environment) [8.27 p.m.], in reply: I thank all honourable members who contributed to debate on the Filming Approval Bill. I will address a number of issues that were raised during the course of discussions. Some of the people who represent environmental groups seem to hold the view that this bill is unnecessary. That is a view that rests on an assumption that the effect of the Land and Environment Court's decision in the Stealth case is limited only to the making of that film. The only way to follow the proposition read out by the honourable member for Bligh is to understand that she was acting on an assumption that the Land and Environment Court's decision applied only to the Stealth case. But that manifestly is a mistaken assumption. It is clear that real doubts have been created as a result of the Land and Environment Court's decision concerning the existing law about filmmaking in national parks and wilderness areas. We do not need some weird conspiracy theory to explain this circumstance; it is simply that the judge made a number of observations. The judge having made those observations, people in the film industry and managers of national parks need to be sure that we have a clear set of principles, regulations and laws under which decisions can be made in the future. In ruling on the Stealth matter the court quite specifically drew attention to doubts concerning the power to approve the making of any commercial film in a national park. The court also drew attention to doubts concerning the power to approve the making of any film at all in a wilderness area, at least in those circumstances where filming requires exclusive use of the area in question. I concede that there is not much point in going into every legal or abstract legal detail of the case and its implications in a debate in the Parliament. It is important to understand several fundamental points. In the case on 29 April Justice Lloyd ruled that, because the film company was granted permission to enter the wilderness area and perform certain filming activities in it and had been granted exclusive use of part of the land to the exclusion of the public, approval or permission was at law a licence. He gave a number of legal precedents that he thought established that point. Once he had held that the consent given by the National Parks and Wildlife Service was a licence, its granting was, in the words of Justice Lloyd, "expressly proscribed by section 153A of the National Parks and Wildlife Act 1974 in a wilderness area". On that basis alone the filming was found to be unlawful because section 153A does not give the Minister the power to grant a licence in respect of land within a wilderness area. The point is that it was not clear before the case was decided that we were dealing with a licence. This was the legal ambiguity with which National Parks and Wildlife Service officers wrestled before the case was brought. As a matter of abstract law, I remind the House that the court made no decision about the environmental effects of filming in the national park. In fact, almost nobody sensible has suggested that the filming would of itself have done any damage to the national park. It was a question of principle-and not just a general principle but quite detailed legal matters of principle. Once the court's decision on the question of a licence was taken, it followed automatically that the approval was not permitted under the Act. To imply that there was some blatant or reckless action on the part of National Parks and Wildlife Service officers with regard to granting that licence is, I believe, a slander against those officers. The court, having made its decision about the licence, did not distinguish between the licence for the making of Stealth or any other commercial film, such as a nature documentary or a promotional, tourism-related film. The court's findings were that if the activity is exclusive, licensed and within a wilderness area then the licence is invalid and, therefore, unlawful. The court drew attention to doubts concerning the power to approve the making of any commercial feature film in any national park or reserve, regardless of whether the land in question is a declared wilderness. It also drew attention to doubts about any filming, possibly even the taking of photographs, in a wilderness area in circumstances where the filming requires exclusive use of the area in question-which is what turns the approval into a licence-or where the film is being undertaken commercially, that is, for sale, hire or profit. This particular court case raised doubts about filming in national parks generally. There is absolutely no question that it raised significant ambiguity. It was not the judge's intention to make trouble. It was just that, by the time he decided the complex matters involved in the case, he had made a series of observations that clearly cast doubts on the whole question of filming in national parks. The Government intends by this bill to eliminate that ambiguity in the law because it wants to support the State's film industry. No member who has spoken in this debate does not support the industry at some level or another. However, I also want to support the national park managers. I have spoken to several of them, including managers in the Blue Mountains, since this episode occurred. I assure the House that, regardless of the comments of conservation activists in the community, national park managers were extremely anxious to tell me, first, that they believed the court case raised ambiguities and, second, that they would like those ambiguities to be removed because they will have to administer these matters in the future. Regardless of whether honourable members agree with the legal impact of the court's interpretation of the existing law, it is undeniable that the film industry wants this bill to be passed. National park managers also want the bill to be passed not merely for legal reasons but for everyday, practical reasons. They want to be sure what they are doing. If we are to attract investment in our film industry we cannot debate whether it is legally permissible to make a film in a national park. It is no good conservation activists telling us that there is no uncertainty about this matter. If the film industry believes there is uncertainty it will not invest, and that will be that. In this context, I point out that in a press release dated 5 May the Screen Producers Association of Australia said that the court's decision "has created uncertainty and confusion amongst filmmakers and risks NSW's reputation as a user- friendly location for local and international film producers." Similarly, in its press release dated 5 May, AusFILM, which markets Australia as a film-making destination, said that the bill: … is urgently needed to eliminate this uncertainty-without it, every future film in a national park will have a legal cloud over it. Ms Trisha Rothkrans, Chief Executive Officer of AusFILM, also said during an ABC News radio interview on 8 May that film projects will certainly-that is the word she used-be lost if this legislation is not passed. The bill's fundamental aim is, therefore, to create legal certainty for all who will be concerned about the permissibility of filming in our national parks. It will give the Minister for the Environment explicit power to authorise the making of a film within the national park estate. Turning to the bill in more detail, it has been alleged that clause 4 (9) overrides all environmental legislation. The honourable member for Bligh expressed herself to be shocked, amazed and astounded that that clause should override all environmental legislation. But the claim that it does so is complete rubbish. The bill does not suspend the operation of the National Parks and Wildlife Act, the Wilderness Act or the Marine Parks Act. It removes the need for any other approval under those Acts. The obvious intention is to streamline the approval process to ensure that it is not subject to unnecessary delays. The honourable member for The Hills said in a slightly different context that it would be awful if film producers have to spend inordinate amounts of time filling in forms and preparing environmental impact statements. I will come to that matter in a moment. We are talking simply about streamlining the process so that instead of making applications under three separate Acts an application can be made under this provision, which covers the other Acts. We are in no way overriding the other Acts; we are simply making a sensible administrative provision. Future filming applications will be assessed, as they are now, under part 5 of the Environmental Planning and Assessment Act. Pursuant to section 111 of that Act, any application to film will be subject to an environmental impact assessment which will consider all potential impacts that a proposal may have on the natural and cultural values of the national park estate, wilderness areas and marine parks. In wilderness areas this will, of course, include the wilderness management principles in the Wilderness Act 1987. The bill does not, as has been alleged outside the House-I am not sure whether it has been alleged inside the House-override the Threatened Species Conservation Act 1995 or weaken the assessment of impacts on threatened species and endangered ecological communities. Clause 5 (3) of the bill explicitly states that nothing in the bill affects the operation of part 5 of the Environmental Planning and Assessment Act. Section 112 of that Act requires the Minister to assess the impact on threatened species and obtain an environmental impact statement if the impact is likely to significantly affect the environment, threatened species populations, ecological communities or their habitats. I understand that the film industry has sought clarification about the need to prepare a review of environmental factors [REF] for all future filming applications. I made reference to that issue in my second reading speech. The honourable member for The Hills raised the question again, which I accept to be legitimate in this context. I confirm that, as is the case now, an assessment of environmental impacts will be required before any film-making activity proceeds. That has been the case in the past and it will be the case in the future. It is required by section 111 of the Environmental Planning and Assessment Act. However, the extent of environmental assessment required will depend entirely on the nature and location of the specific proposal. That was the case before and that will be the case in the future. For small, low-impact, short-term productions, I expect the assessment will be quick and simple. But for larger-scale productions, it is likely that a more comprehensive environmental assessment will be required. I bear in the mind that the honourable member brandished a copy of the elaborate REF for the Mount Hay location of Stealth that was required by the National Parks and Wildlife Service because it was dealing with a significantly sensitive location. In other words, the National Parks and Wildlife Service, as it turned out, misunderstood the question of a licence in a wilderness area, but was, nevertheless, in every pragmatic sense, paying the closest attention to the protection of the park estate. That is why in that context it required a very detailed REF. I intend that when this bill becomes law the extent of environmental assessment necessary for film-making activities will be the same as it was before the decision of the Land and Environment Court in the Stealth case. That means that if people want to film in an area that is of more than usual sensitivity they will have to prepare an elaborate impact statement or study of environmental factors. However, if it is a cursory exercise the requirement for an environmental assessment will reflect that. The filming and photography policy of the Department of Environment and Conservation will be reviewed in the light of this legislation, and that matter will receive attention during the review. I will ensure that the department consults all stakeholders during the review. I am also aware of concerns regarding the meaning of the words "educational, scientific, research or tourism purposes", as used in clause 4 (3) of the bill. The meaning of those words is important because they are the only purposes for which filming activities in wilderness areas will be allowed. While I believe that the plain meaning of those words is obvious, I am pleased to clarify the matter in the House. "Scientific or research purposes" means filming for the purposes of research or investigation into Aboriginal heritage or culture, historic heritage, biodiversity and threatened species, environmental processes, park management, public recreation or bushfire management. "Educational purposes" means filming for the purposes of educating or raising awareness of Aboriginal heritage or culture, historic heritage, biodiversity and threatened species, environmental processes, park management, public recreation, bushfire management, and visitor safety. "Tourism purposes" means filming which, as the primary purpose, promotes visitation to national parks. I stress that tourism must be the primary purpose of a film in this circumstance. Therefore, to use the inevitable example from New Zealand, films such as The Lord of the Rings series, which manifestly provided a massive tourism boost for New Zealand, would, nevertheless, under this definition not be classified as tourism-related films because the promotion of tourism was not the primary purpose for making those films. I am not sure what the primary purpose was, but it was not for the promotion of tourism. Such films could not be permitted within a wilderness area. However, where filming is primarily for the promotion of tourism, such as the television show Getaway or the Feel Free program of Tourism New South Wales, it would be permissible. Clause 9 of the bill contains a general regulation-making power which provides for regulations relating to the making and determination of applications. It may be appropriate to have these meanings explicitly defined in a regulation, with further guidance to be provided in the filming and photography policy of the Department of Environment and Conservation. Another issue that has been raised is the extent of discretion available to the Minister when making a decision under clause 4 of the bill. Clause 4 (6) of the bill is not intended to limit the discretion of the Minister in granting approval for filming. Sufficient discretion is already provided for in part 5 of the Environmental Planning and Assessment Act. The Minister will have the power to refuse approval or to impose conditions to protect the environment. Clause 4 (6) of the bill provides guidance on the minimum issues that must be considered when imposing conditions. That part of the legislation is consistent with many other similar statutes which create a power to approve or refuse an activity and then list the specific matters that are to be considered before making that decision. The power to impose conditions then ensures that the activity can be properly regulated when it is being undertaken. An issue has also been raised about clause 8, the delegation clause. I am advised that the majority of filming applications are presently determined by the department's regional managers and the balance are determined by more senior officers up to the director-general. Assuming the bill becomes law, I believe that will continue to be the case. Delegations to persons who are not State government employees will require the preparation of a special regulation under clause 8 (2) of the bill, and will thus allow for scrutiny by Parliament. I understand that this regulation-making power will be likely to be
used only to delegate functions under the bill to the chair of a board
of management of land reserved under part 4A of the National Parks and
Wildlife Act. That part establishes co-management of national parks
by Aboriginal people. An allegation was made by the honourable member
for Bligh-I cannot understand why, but it was explicitly made by her-that
the bill does not contain third party appeal rights. I advise that these
rights will remain under section 123 of the Environmental Planning and
Assessment Act. It is a matter of everyday law and statutory interpretation.
The bill does not affect part 5 of that Act as it applies to the assessment
of filming proposals. Question-That this bill be now read a second time-put. Division called for. Standing Order 191 applied. Noes, 1 Ms Moore Question resolved in the affirmative. Motion agreed to. Bill read a second time and passed through remaining stages.
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