2/6/04 LC 2nd Reading
FILMING APPROVAL BILL
Page: 57

Second Reading

Debate resumed from 13 May.

The Hon. IAN MACDONALD (Minister for Primary Industries) [5.21 p.m.]: I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The Filming Approval Bill 2004 has been introduced to allow filming within the national park estate and marine parks, subject to the imposition of strict environmental conditions.

The national park estate conserves a unique diversity of outstanding landscapes in New South Wales, from the red desert, to rainforests, alpine mountains and vast tracts of wilderness. It is this very diversity of magnificent locations that is a key factor in attracting both the Australian and the international film industry to New South Wales.

Our national parks have already served as successful locations for many Australian and international films, such as Mission Impossible 2, Lantana, Rabbit Proof Fence and The Mask 2. A number of these films have won awards. Similarly, successful Australian TV series such as Fireflies and Home and Away have been filmed, in part, in our national parks.

The NSW film and television industry provides around 50,000 jobs and is worth some $4 billion a year to the State's economy. This Government strongly supports the industry and is keen to see it develop and flourish in this State.

The Government is of the opinion that filming is an appropriate activity within our national park estate. It frequently provides an opportunity to promote national parks, and to increase public appreciation and understanding of the natural and cultural values of our national parks. It is an activity that also helps to promote national parks to both local and international visitors.

For example, who can forget the inspiring and romantic images of the Snowy Mountains seen in The Man from Snowy River? The House would also be familiar with The Lord of the Rings films, which showcased New Zealand's magnificent national parks and natural landscapes with such remarkable effect. These areas are now being widely promoted to people who want to visit the stunning areas where the film was made.

The need for this legislation arises from the recent making of a film known as Stealth.

The Department of Environment and Conservation recently granted consent for the filming of Stealth in a part of the Blue Mountains National Park, which also happens to be in a declared wilderness area.

The decision was challenged in the Land and Environment Court by the local conservation group, the Blue Mountains Conservation Society. While the Court did not make any adverse finding about the environmental impact of the proposed filming, it nevertheless set aside the Department's consent on the basis that commercial feature filming was inconsistent with the objects of the National Parks and Wildlife Act and the management principles of the Wilderness Act.

Specifically, Justice Lloyd said that:
I do not think that a production of a commercial feature film is appropriate public recreation in the context of the objects of the National Parks and Wildlife Act or the purpose of reserving land as a national park. Such an activity has nothing to do with these objects or that purpose.

There is sufficient case law to suggest that, in these circumstances, such activities would be unlawful in a national park.

In this instance, the activity in question is the making of a commercial feature film.

In ruling on the Stealth case, the Land and Environment Court has specifically drawn attention to doubts concerning 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. I stress that the Court's observations were not limited to Stealth-they were made with respect to any commercial feature film.

The Court has also drawn attention to doubts concerning the power to approve the making of any film in a wilderness area, at least in the following circumstances:
(a) where the filming is being undertaken commercially (that is, for sale, hire or profit); and

(b) where the filming requires exclusive use of the area in question.

The Government is committed to eliminating these doubts.

As the law now stands, it is entirely possible that magnificent Australian feature films such as The Man From Snowy River, Lantana and Rabbit Proof Fence could not be filmed in a national park in New South Wales.

It is even possible that the making of a nature documentary or a tourist promotional video in a wilderness area, at least in those cases where exclusive occupation was necessary to film, would also be unlawful.

These are unacceptable restrictions and ambiguities on the making of films in New South Wales. They undermine the Australian film industry's ability to film in our magnificent Australian bushland settings.

The Bill will remedy this problem by putting beyond doubt the power of the Minister for the Environment, or a delegate, to authorise the making of a film in the national park estate. A similar power will be conferred on the Minister for the Environment and the Minister for Primary Industries or their delegates to permit the making of a film in a marine park.

This power will apply within the national park estate or a marine park whether or not filming is for commercial purposes and will include the power to authorise exclusive access to and use of a specified area for a defined period of time.

To ensure that the precious values of wilderness areas are protected, filming will be restricted in these areas. Wilderness includes large natural areas that remain substantially unchanged by modern human activity. They are the most intact and undisturbed expanses of our remaining natural landscapes and their special values are managed to ensure they're disturbed as little as possible.

The Minister for the Environment will have the power to approve commercial filming in declared wilderness areas, but only where the film is for scientific, research or educational purposes or for the promotion of tourism, and where the activity is consistent with the wilderness values of that particular area.

Of course, filming will only be permitted within the national park estate or marine parks subject to strict environmental conditions.

Indeed, I would like to reiterate here that the Land and Environment Court did not make any adverse finding regarding the environmental impact of the filming of Stealth within the Blue Mountains National Park. In fact the Department of Environment and Conservation's thorough environmental assessment concluded that any impacts could be mitigated through the imposition of conditions.

This Bill has been carefully drafted to enable filming to take place within the national park estate and marine parks in certain circumstances whilst ensuring that environmental protection is paramount.

Let me outline the steps that will ensure that outcome:

Firstly, the Bill ensures that the Minister or delegate will have the power to impose appropriate conditions when issuing filming approvals. This may include conditions to:

o provide that the filming is conducted in a manner which minimises or indeed eliminates adverse impacts upon the natural or cultural values of an area;

o require existing means of access to be used where feasible;

o restrict the area in which filming is conducted; and

o restrict the period during which filming is conducted.

Filming proposals will be subject to an environmental impact assessment under Part 5 of the Environmental Planning and Assessment Act 1979. This means that the Minister will require the preparation of a Review of Environmental Factors or, if needed, an Environmental Impact Statement.

Finally, if filming is proposed in Aboriginal co-managed national parks, such as in Mutawintji National Park in western New South Wales, the concurrence of the Board of Management for those lands must be obtained prior to granting any approval. This will ensure that the views of the Aboriginal owners are respected when filming occurs in these areas and that Aboriginal sites are protected.

These statutory safeguards are further strengthened by the Department of Environment and Conservation's Filming and Photography Policy, which ensures that filming activities do not compromise the unique natural and cultural values that our national park estate protects. That Policy will of course be reviewed and amended, following passage of this legislation.

This Government remains committed to creating and managing one of the world's very best systems of protected areas.

Since coming to office in 1995, the Government has established around 345 new national parks and reserves, adding up to around two million hectares of land. In total, our national parks system now conserves 7.4 per cent of the total land area in NSW. The Government has also more than tripled the area of declared wilderness in New South Wales. Approximately one quarter of the State's protected area network is wilderness.

The Bill will allow films to be made in the national park estate and marine parks whist ensuring that the environment that we have worked so hard to protect will receive maximum protection.

In particular, to ensure that the special values of wilderness areas are protected, filming will only be allowed in these areas for scientific, research, educational purposes or for the promotion of tourism and will be subject anyway to very strict environmental safeguards.

This is a necessary and sensible Bill, which takes a positive step for New South Wales. It will enhance the protection and public appreciation of our national park estate and will encourage tourism to these beautiful places, whilst also enhancing the State's international reputation as a film-making centre, attracting investment and creating jobs in the local film industry.

Can I finally say that I welcome feedback on the provisions in the Bill. I have already met with representatives of the Blue Mountains Conservation Society about the legislation and I expect to receive a submission from it in the near future.

The Government, as always, will be prepared to consider amendments that will improve the legislation.
I commend the Bill to the House.

The Hon. GREG PEARCE [5.23 p.m.]: The object of the bill is to allow commercial filming to take place in national parks. All honourable members are aware of the circumstances which led the Government to present this bill. The bill relates to the production of the Stealth movie which was to take place last month in a wilderness area near Mount Hay. The approval was subject to an appeal by the Blue Mountains Conservation Society Inc. before the Land and Environment Court. The court ruled that filming should not proceed in the wilderness area. The court found in favour of the conservation society on 29 April on the grounds that the court did not believe that production of a feature film qualified as "an appropriate public recreation" under the objects of the National Parks and Wildlife Act or principles of management for a national park; that the approval contravened section 153A of the National Parks and Wildlife Act which states that the Minister or the director-general shall not grant a lease, licence or franchise in a wilderness area; the approval was contrary to the National Parks and Wildlife Service guidelines for commercial filming and photography; the unlawfulness of approval and consent for commercial filming under section 9 of the Wilderness Act 1987; and the fact that declared wilderness areas are sacrosanct.

Immediately following the judgment, the Premier, Bob Carr, announced that an appeal would be launched in the Supreme Court. He also stated that if the appeal was not successful, the Government would legislate to ensure that filming could go ahead. As events transpired, the producers of the film decided against continuing with an appeal, given the expense and delay that that process entails, and proceeded to make the film without any further impediments. Nevertheless, this bill seems to have been designed to ensure that the Premier is not embarrassed by the performance of the Government in relation to this matter. The Attorney introduced this bill in the other place and pointed out that the New South Wales film and television industry is worth $4 billion a year and provides approximately 50,000 jobs. He stated that the Government supports the film industry. The Opposition supports the film industry as well.

Mr Ian Cohen: So do the Greens.

The Hon. GREG PEARCE: I appreciate Mr Ian Cohen making that clear. The issue is whether it is appropriate to film in national parks. All sides agree that it is not appropriate to film in wilderness areas which the court properly declared to be sacrosanct. I commend to members of the House the excellent speech made in the other place by the shadow Minister for the Environment, the honourable member for The Hills, in which he outlined in considerable detail the circumstances leading up to the proposal for filming. He outlined at length the characteristics of the area in which filming was to take place and the process undertaken by the film-makers in seeking to obtain appropriate approvals for filming. An environmental study was undertaken which, from all accounts, was a detailed and proper environmental study.

The honourable member for The Hills also set out the conditions under which filming was approved. Some of the conditions, which were highly specific to a wilderness area, were that access to the swamp area, which was the setting for the film, was confined to an access route that was identified by the Department of Environment and Conservation instead of the route proposed in the review of environmental factors, and the applicant had to contribute to the cost of stabilising the additional access track. The conditions went so far as to stipulate the details of shoes and clothing that were to be worn by people working in the area while filming took place, the timing for rehearsals, and costs.


As we know, the Blue Mountains Conservation Society successfully appealed to the Land and Environment Court, which found that filming should not proceed. The response by the Premier was apoplectic. On 30 April he spoke on 2BL radio in support of the location of the filming, and called it "an authentic location". I commend to honourable members the contribution of the shadow Minister in the other place, because when one reads about the detail of the site and the lead-up to it, it is quite ludicrous for the Premier to have claimed on radio that the location was authentic and that it provided a North Korean landscape. That was nonsensical.

Clearly, alternative sites were available and a number had been identified by the Colong Foundation for Wilderness prior to filming. When one reviews what happened one would wonder how we have reached this rather dramatic situation. There were some disturbing elements in what was intended to be done in the wilderness area, including the building of a platform, and the landing of a helicopter to bring in equipment. Also some worrying detailed activities were involved, including the intention to simulate explosions of bullets hitting rocks and so on. It is fair to say that there was to be some considerable disturbance to the area. The Filming Approval Bill allows the Minister to grant filming approval in a national park or marine park, but specifically precludes filming in wilderness areas such as Mount Hay, except for educational, scientific, research or tourism purposes.

Filming will not require development consent but filming proposals will still be subject to part 5 of the Environmental Planning and Assessment Act. The Minister will require a review of environmental factors or an environmental impact statement to be prepared. There is some controversy about whether film-makers will want to go through those processes. In order to prepare a proper review of environmental factors or an environmental impact statement, the proponents will have to expend considerable money, with experts providing those studies. In that context it is of some concern to hear that an advisor to the Minister for the Environment did not consider that that would be an issue for film-makers, and apparently suggested that a half-page document would suffice.

I certainly do not accept that that is appropriate in relation to a review of environmental factors or an environmental impact statement for those sorts of activities. The film and television industry is worth $4 billion a year to the New South Wales economy. There is, I suppose, a genuine concern that the Stealth decision could discourage overseas movie makers from coming here. Currently the Prime Minister is on a very important trip to the United States of America, where I am sure he will be able to assure Mr Arnold Schwarzenegger that the film industry is alive and well in New South Wales and Australia.

The Attorney General claims that the legislation is necessary because the court decision could make filming unlawful in a national park. However, in our view the bill simply restates existing law. Commercial filming was never permitted in wilderness areas, and that will still not be allowed under the bill. The Land and Environment Court did not find that filming in a national park was unlawful, only that filming in a wilderness area was unlawful. One would have to wonder whether there is really any need to proceed with this bill, to cause angst. Most honourable members would have received a flood of emails from rightly concerned people who wonder what the Government is on about and why it has to proceed this way. The only real answer to that seems to be that it is designed to ensure that the Premier's pride is not impacted by not doing what he said he was going to do.

This bill was introduced merely to satisfy a silly comment by the Premier when he first heard about this decision. In closing, I note that the proposed Act provides for a review after five years. One would hope that if no use is made of the Act in the intervening period it may be reviewed even earlier. However, I suspect it will just sit on the statute books and we will not see much more about it. I understand quite a number of amendments are proposed to be moved in Committee. In the circumstances, the Opposition will not oppose the bill.

The Hon. DON HARWIN [5.36 p.m.]: In considering the Filming Approval Bill I specifically take up the comments of the Minister in his second reading speech in the other place, and comments contained in the speech that has been incorporated in Hansard in this place. In particular the Minister asserted:

The New South Wales film and television industry provides around 50,000 jobs and is worth some $4 billion a year to the State's economy. Therefore, the Government strongly supports the industry and is keen to see it develop and flourish in this State.

I am concerned that the situation is somewhat different from that described by the Minister, and I will outline why. I note also that the state of the film industry in its international context and its importance to Australia generally has been a theme of contributions during debate. Feature film production in New South Wales is a critically important industry to which members of this Chamber should pay close attention. It is an industry that shapes and defines our community's sense of identity; it is an industry that sustains thousands of jobs and businesses; it is an industry that brings tourists to our shores; but it is also an industry in an atmosphere of intense competition from other parts of the nation and the world that can easily be jeopardised by government mismanagement.

The bill, which has been rushed through Parliament, follows hurriedly on the heels of exactly that: government mismanagement. The feature film industry in Australia has enormous benefits for our society, benefits that are economic and cultural. Economically, the film industry is a significant provider of employment across a range of skills and occupations. The last figures available from the Australian Bureau of Statistics relating to the film industry were published in 2000. They revealed that at the end of June that year there were nearly 2,000 businesses in the film and video production industry that employed just over 15,000 people. As well as those involved directly in feature film production, such as actors, cinematographers, sound technicians, costume designers, editors and so on, there are also ancillary workers such as accountants, lawyers, caterers, transportation providers and so forth.

Every feature film production green-lighted in New South Wales, or attracted here from overseas, provides work for hundreds of local people. Just today, the Japanese production company Toho Productions Inc. is shooting footage around Sydney Harbour for inclusion in director Ryuhei Kitamura's latest instalment in the series of Godzilla movies. The two days of production in Sydney will employ about 70 Australians as part of the crew.


In addition to creating jobs for people within the film industry, motion picture production has a positive economic benefit for related industries, notably, tourism. In New Zealand recently the phenomenal success of The Lord of the Rings trilogy has clearly demonstrated the capacity for movies to attract international tourists. The scale of this success, however, should not lead us to think that only major blockbusters can have an impact. Earlier this year Western Australia's culture and arts Minister, Sheila McHale, commented on how even a modest international success, the Australian film Japanese Story, helped to promote her State as a unique destination for foreign tourists. While the economic contribution of the feature film industry in Australia is more quantifiable, its cultural contribution to our sense of national identity is, nonetheless, of enormous significance. Last year, Deborah Parsons and Glenda Hambly, members of the Victorian film and television industry working party, made the following comments in the Herald Sun:

What we and our children watch on the big and little screen is our culture. Film and television is an industry of national importance. It brings all Australians together, from the bush, from the city, from diverse ethnic and economic backgrounds. When our films are watched internationally, they act as our cultural ambassador.

Feature films are a central part of the culture sphere on which our society negotiates its evolving sense of self. Movies are an important medium through which we engage with our prevailing national myths. We revise our understanding of our history and establish an understanding of what it means to be Australian. The vital role of film in the cultural life of our nation was recognised by the Gorton Federal Government when it laid the groundwork for the revival of the Australian film industry in the 1970s through the establishment of the Australian Film Commission [AFC] and the Australian Film, Television and Radio School. The presence of a healthy local feature film industry is critically important, and attracting productions to Australia from overseas is a crucial element in the continued survival of such a local industry.

The presence of foreign productions provides additional employment and experience for members of the Australian industry, without which many would be forced either to leave the industry or to pursue a career outside Australia. It is important that these projects continue to be encouraged to come to Australia. Several times in the past year the Treasurer has acknowledged to this House the value of the film industry to New South Wales. On 30 April last year he told the House that the industry was "becoming an increasingly important sector of the New South Wales economy". On 1 July he commented on "the strength of the State's film and digital media industries". On 4 September he proudly declared our State to be "the national centre of the film industry in Australia".

On each of those occasions and on others the Minister, who I note is in the Chamber, highlighted the importance to our film industry of foreign productions by repeatedly mentioning the various Matrix and Star Wars films. As recently as March this year he was telling us, "The strength of the New South Wales film and digital media industries was highlighted last year by the filming of the Matrix Reloaded and Matrix Revolutions in Sydney. Sadly, there is somewhat of a disparity between what the Minister has told this House and the true state of film production in New South Wales. In November last year the Australian Film Commission published its annual report entitled "National Survey of Feature Film and TV Drama Production 2002/03." The report contains figures about the level of feature film production in Australia that are of concern.

The figures relating to New South Wales, however, are perhaps best described as alarming. They show that in 2002-03, while we were being told about the strength of the industry in our State, film production in New South Wales was fast approaching a crisis. According to the AFC annual report, in the financial year 2002-03 national feature film production activity dropped for the first time in eight years. Total feature film expenditure across the country dropped by 32 per cent, from $342 million to $232 million. Almost all this dramatic decline occurred in New South Wales. In this State feature film production slumped by 60 per cent, that is, almost twice the national figure. This appalling statistic is all the more staggering when it is compared to other States. In the same period, Victoria experienced a drop of just 16 per cent, in South Australia the value of production fell by only 19 per cent and, in sharp contrast, feature film production in both Queensland and Western Australia rose significantly.

In Queensland, feature film expenditure increased by over 80 per cent and in Western Australia spending almost doubled. Clearly, the position in New South Wales is something we need to look at because it could be said to be letting down the national team. That is all the more apparent when one looks at the assessment in the report of that vital source of revenue and employment-foreign film production. In 2002-03 the value of foreign feature film productions in Australia fell only slightly-from $185 million to $169 million. That is an overall decline of about 8.5 per cent. As with the statistic for overall feature production, this national decline is attributable almost entirely to an inability by New South Wales to attract feature filmmakers from overseas.

Expenditure by foreign productions in New South Wales fell from $122 million in 2001-02 to just $21 million in 2002-03, that is, an 82 per cent reduction in spending from external sources. To some degree that downturn reflects the increasingly competitive global market in which Australia now finds itself when trying to attract feature film productions. In addition to using locations and facilities in Canada, Ireland and New Zealand, productions are increasingly finding new alternatives in Eastern Europe. The filming of Cold Mountain in Romania and Van Helsing in the Czech Republic are just two high-profile examples. Furthermore, Hollywood is making concerted efforts to lure productions back to California and the industry will only find further support in this endeavour from Governor Schwarzenegger. However, the decline in foreign film expenditure in New South Wales last year cannot be explained solely by the emergence of rival sites of production overseas.

The result in New South Wales did not have a greater impact on national figures because of the contrasting success in attracting foreign productions enjoyed by Queensland. In 2002-03 our neighbours to the north managed to attract two large budget foreign features-Peter Pan and The Great Raid. In securing those projects foreign spending in that State increased by an impressive 360 per cent. The experience in Queensland demonstrates that Australia can still manage to attract major film productions projects from overseas, but the Carr Government needs to do more to secure this expenditure for New South Wales rather than allowing it all to be lured to Queensland or to other States. Almost nine times as much flowed into Queensland from overseas last year as a result of film production as came into New South Wales. The Government needs to explain why our State is suddenly so uncompetitive.

On 4 September last year the Treasurer used the 2001-02 AFC annual report to proudly declare to this House, "New South Wales is the national centre of the film industry in Australia." Just two months later, the AFC's 2002-03 annual report dramatically demonstrated that that claim no longer held true. Two years ago our State enjoyed 53 per cent of total film production in Australia, with expenditure in New South Wales reaching $353 million. Last year, spending fell to just $141 million and our share of activity dropped to just 38 per cent. That means that, far from being the national centre of the film industry in Australia, New South Wales is now placed third behind Queensland and Victoria. These concerning statistics from the Australian Film Commission clearly demonstrate that something is amiss in the way in which the New South Wales Government is engaging with the feature film industry.

The Carr Government's mishandling of the Stealth situation appears to be only one example of its failure to provide an atmosphere in this State that is conducive to motion picture production. If the New South Wales Government is to succeed in attracting significant film projects from overseas it must provide the industry with clarity, consistency and security.


The actions of the Government with regard to the filming of Stealth demonstrate its failure to do that-and that failure is now jeopardising future film production in New South Wales. The director of Stealth, Rob Cohen, acknowledged in the media last month that the debacle surrounding his project's access to Mount Hay would result in Australia's standing in Hollywood needing "a little PR repairing". He told the Sydney Morning Herald:

I'll do my part to explain what happened and what the result was, but the film commissions and so on will have to do their part to undo a bad impression.

The Carr Government is responsible for creating that "bad impression" and tarnishing Australia's reputation in Hollywood just when it is becoming harder to secure business from California. The National Parks and Wildlife Service suggested the Mount Hay location to the Stealth film-makers and the Government said they could use that location. On the day that the Land and Environment Court decided to stop filming in the Grose Valley wilderness area proceeding, the Premier blasted the court's decision as placing "our film industry's international reputation at risk".

The bill that the Carr Government hurriedly introduced following this bungle only validates the court's decision. The provisions of this bill allow for the Minister to grant approval for feature film production in a national park or marine park, with the explicit exception of any wilderness area. In other words, under the provisions of this bill the filming of Stealth at Mount Hay would not have been allowed. This makes it abundantly clear that the Land and Environment Court is not to blame for risking our reputation. The standing of New South Wales as a world-class location for film production was jeopardised by the Carr Government when it mismanaged the negotiations over Stealth and incorrectly granted permission to film at Mount Hay. It is the Carr Government that must take that responsibility.

Sadly, rather than acknowledging its mistake, the Government has attempted to obscure its culpability by blaming Justice Lloyd and by presenting this bill as a solution. Consequently we are faced with a bill that has the twin effects of reinforcing existing legislation and presenting further obstacles to film production in the State. Under the National Parks and Wildlife Act 1974 and the Wilderness Act 1987 commercial filming was never permitted in wilderness areas. That situation will not change following the passage of this bill. What will change is the burden placed on film-makers to prepare a review of environmental factors or an environmental impact statement in order to proceed with filming in non-wilderness area sections of national or marine parks-activity that, contrary to comments made by the Minister for the Environment in the other place, was never deemed unlawful by Justice Lloyd's ruling. Catherine McDonnell from Fox Studios Australia has expressed concern about the significant time delays involved in the preparation of such documents that, as the honourable member for The Hills and the Hon. Greg Pearce said, can be up to two centimetres thick.

Rather than being necessary and well considered, this bill is a rushed piece of legislation. It has more to do with the Government saving face and creating the impression of taking decisive action than taking the steps required to secure a sustainable and robust film industry in New South Wales. The Opposition does not intend to oppose the bill but nor does it consider it to be the most appropriate response to the situation. The feature film industry in this State is in dire trouble. Production in New South Wales will only go backwards and we have lost ground dramatically to Queensland and our international rivals. The alarming situation in which we find ourselves is a result of the Carr Government's incompetence, and this bill does little to provide the clarity and security necessary to rectify the shocking exodus of film production expenditure from our State in the past year.

Mr IAN COHEN [5.53 p.m.]: I oppose the Filming Approval Bill. I am pleased that the Treasurer, who knows the history of the Carr Government's evolution, is in the Chamber and I hope that the Premier will lend at least one ear to the information that I will offer in this debate.

The Hon. Michael Egan: I always listen to you.

Mr IAN COHEN: I appreciate that; I really do.

The Hon. Michael Egan: Unlike other people, you're not a hypocrite. You might be wrong but you're not a hypocrite.

Mr IAN COHEN: I appreciate the Treasurer's interjection. Mistakes can be made in this or in any other House of Parliament but we do not like hypocrisy. We do not like members who say one thing and then say exactly the opposite a little while later. It is just not on. What would the Treasurer do with such people given the opportunity?

The Hon. Michael Egan: I'd throw them out of the Parliament.

Mr IAN COHEN: The Treasurer would throw such members out of the Parliament. I thank the Treasurer for his support on that position of principle espoused so clearly at the commencement of this debate.

The Hon. Michael Egan: Who did you have in the mind-not the same member I had in mind, I assure you?

Mr IAN COHEN: Indeed.

The Hon. Michael Egan: I hope you didn't have me in mind.

Mr IAN COHEN: No, not at all. The Treasurer is consistent-I am not quite sure at what, but he is consistent. History will record him as being so. I will begin my contribution by quoting a committed conservationist and great advocate of wilderness, who once said:

Will we as a nation continue to destroy, piece by piece, the great natural areas of this country? Will we continue to be unmoved by the fact that many of the nation's plants and animals are threatened with oblivion? Or do we resolve that the very fibre of this continent should be treated with greater respect, that our much-diminished wilderness should be protected, and that our country should earn a reputation for excellence in its approach to conservation?

He continued:

The matter of wilderness protection strikes at the heart of this conundrum because wilderness is the total and absolute embodiment of the Australian environment. Still in a largely natural state it offers no concession, no compromises. Unlike many of our fine national parks with their bitumen roads, camping grounds, amenities, walking tracks, recreational facilities and the like, wilderness stands as a stark reminder of what once was. It reminds us of the ancient life of this continent.

If we lose our feel for this grand old continent in its natural condition, then we lose something of our character as a people. The case for conservation is founded therefore on patriotism. Our commitment to protecting our wilderness is a measure of our maturity as a nation and pride in our identity …

But more than this we shall bring a commitment to protecting wilderness wherever and whenever possible. Without such a commitment, legislation of any kind is of limited value. A government hostile to wilderness conservation could live with this legislation. What is important is the will behind this power, where such powers are enacted. This is the sharpest distinction that can be drawn between the Government and the coalition: we believe, and we will act. We will build for New South Wales the finest record on conservation to be found anywhere in Australia. The achievements of New South Wales in nature conservation will draw the praise of the world.

That committed conservationist and great advocate of wilderness went on to taunt critics of his environmental zeal and to challenge those opponents to put up or shut up. He continued:

Would they dare to dilute laws to protect wilderness areas? Would they retain the powers that have been carefully inserted in legislation, such as the right of third parties to appear before the Land and Environment Court and argue that a government policy is infringing wilderness protection?

That committed conservationist is Bob Carr. He made those comments in speaking to the 1987 wilderness legislation. He was certainly on song that day when he read the Wilderness Bill for the second time in the other place.

The Hon. John Hatzistergos: Seventeen years ago.

Mr IAN COHEN: Exactly. Since then we have witnessed the Faustian drama of our Premier changing from being a pre-eminent conservationist, who strutted the world stage when the time was right, extolled the virtues of wilderness, passed legislation successfully through Parliament and verbally whipped anyone who dared to oppose him.

That is the same Bob Carr that took that famous step that day and drew a line in the sand for wilderness across which no destructive force would cross. His arguments were compelling and the key to them all was: wilderness is different to everything else. It is something that we cannot afford to lose because it cannot be replaced. How do you lose wilderness? As Bob Carr said, it happens piece by piece. Piece by piece we dilute the laws that protect wilderness areas to suit whatever purpose we may find interesting at the time or to benefit the subject of our loving gazes at the time. And piece by piece the delicate web that holds wilderness together starts to unravel. How does this happen in wilderness? Surely wilderness has been around for a while? After all, it represents "the very fibre of this continent", as Bob Carr said. Surely wilderness is pretty robust? Is that material, Mr Treasurer, for tossing a member out of the House?

The DEPUTY-PRESIDENT (The Hon. Amanda Fazio): Order! Mr Ian Cohen should address his comments in this debate to all members in the Chamber and not to individual members.

Mr IAN COHEN: I was keen to see whether the Treasurer would stand by his previous comments that were so robustly enunciated earlier in the debate. I thought that, given that degree of enthusiasm, I would receive a follow-up comment on the matter. Wilderness is robust, but only against what it evolved to resist. Human beings have proven adept at dominating the natural environment. There are no plants and animals that are not vulnerable to a basic human desire to control the environment and change it to suit. It is certainly vulnerable to four-wheel drives, to other heavy vehicles, to large groups of people tramping through it, to the construction of platforms on top of it and to equipment and machinery of any kind being hauled through it. Wilderness developed at a time when we were not here-not many of us anyway. Wilderness certainly did not develop while the film industry was about either or, luckily, while the Daily Telegraph scribe of cynical superficiality, David Penberthy, was advocating its commercial uses.

The Hon. Michael Egan: Are you attacking my friend David?

Mr IAN COHEN: If the Treasurer read the article today in the Daily Telegraph by David Penberthy he may think that "cynical" and "superficial" may well be appropriate tags for the person who passes himself off as a Daily Telegraph journalist. The Government should be ashamed of its handling of the Stealth filming approval and the subsequent events.

The Hon. Michael Egan: So you are attacking my friend?

Mr IAN COHEN: I am stating a point of view that is supported by many people who have any sense of ability to be able to discern while they are reading a newspaper, yes.

The Hon. Michael Egan: I am not challenging that, I am simply saying he is a friend of mine. I was just ascertaining whether you were attacking him.

Mr IAN COHEN: I suppose you could say I was making a negative comment on his ability as a journalist.

The Hon. Michael Egan: I cannot say I agree with you. He is not a bad journalist.

Mr IAN COHEN: I acknowledge the interjection of the Treasurer and say that one can judge the quality of a person by their friends.

The Hon. Amanda Fazio: I would be careful saying that if I were you.

Mr IAN COHEN: There were others who said, and I tend to adhere to it, that one can also judge the quality of a person by their enemies. On 26 April Columbia pictures and AFG Talons Productions Pty Ltd received approval to film the final scenes for a military adventure movie, Stealth, in the Grose Wilderness across a fragile montane heath and the rock outcrops of Butterbox Point and on an upland swamp below it. The Department of Environment and Conservation [DEC] had advised Talons as early as 14 November 2003 that the film will be legally permissible.

I have walked very carefully along Butterbox Point on the ridge because the area has been seriously damaged by fire. It is truly a fragile montane heath and is in a state of repair after the past fires. It truly is a magnificent area. It is a shame that the very layout of the filming sequence was designed so that the mountains of the Grose Valley were excluded because it was meant to look like North Korea in the film. Yes, it had been burned, and, yes, it was montane heath and it had a suitable backdrop, but they cut out anything that defined the wonderful rugged sandstone outcrops of the Blue Mountains.

The Hon. Greg Pearce: So much for promoting Australia.

Mr IAN COHEN: One could hardly call it promoting Australia, and certainly the scene of an actor running through a swamp, chased by Korean soldiers, is hardly the type of image-

The Hon. Rick Colless: Would it do more or less damage than the fire itself?

Mr IAN COHEN: The Hon. Rick Colless raised the issue about comparative damage to that done by the fire.

The Hon. Rick Colless: The fire would have done more damage, wouldn't it?

Mr IAN COHEN: I acknowledge that the fire would have done an incredible amount of damage. The hanging swamp in a damp environment like that was unaffected by the fire. To think that two wrongs make a right somehow is a bit of twisted logic when we are talking about conservation. The relative issue is that this environment is struggling to repair and recover from fires, and the environment does not need to have the further impact of-

The Hon. Rick Colless: Two blokes.

Mr IAN COHEN: More than two blokes: it was about a person being pursued by Korean soldiers, with a significant amount of infrastructure including platforms, and a lot of auxiliary actors, support artists, make-up artists, photographers and such like. Let us denigrate the activities, and later I will come to the sorts of damage the same company did in sensitive areas of coastal vegetation with another stage of the filming. As events unfolded, it would appear that the memorandum of 2003-18 "Facilitation of Film-making in New South Wales", a directive from the Premier's office, ultimately led to the granting of a licence for filming a war-scenario movie in a wilderness area. The scene for the film involved a jet fighter pilot-actor Jessica Biel-escaping from the North Koreans after destroying a jet fighter with a mind of its own that was out to destroy the world.

If that can be seen to be in keeping with wilderness values, it is an interesting interpretation of the Carr Government. I have heard of media spin before but that is certainly taking it to extremes, but after all this is Hollywood. This is the movie world. The scene did not require a World Heritage Wilderness setting where the filming was later proven to be illegal, yet repeated offers of assistance by environmentalists regarding less controversial alternative film locations went unheeded by the film company. The Blue Mountains Conservation Society started legal action in the Land and Environment Court on Tuesday 27 April 2004. Fortunately, the court was willing to expedite the hearings so that the matter could be dealt with before filming started.

As it turned out, that was the day police moved in to remove protestors on the Mount Hay Road leading to the filming site. Nine people were arrested who were a part of a series of blockades of cars and tripods. The nine include Dr Mick Dark, son of writer Eleanor Dark and Dr Eric Dark, who was recently awarded a medal by Premier Bob Carr for the donation of his parents' home Varuna to be a writers' centre in Katoomba; Jenny Kee, the acclaimed dress designer; and Hugh Paterson, owner of the bush regeneration company, Good Bush. Six other protesters were arrested that day on the road leading to the wilderness area for standing on Mount Hay Road to prevent the Stealth film crew from accessing the Butterbox Point site in the Grose Wilderness Area before the court case could be heard against the granting of the special licence allowing filming on that sensitive wilderness site.

At this point I acknowledge the vital role many compassionate and committed people have played to uphold the value of wilderness. It was certainly an honour to be part of that group of people. I especially thank Robyn Mosman for her wonderful work with the Blue Mountains Conservation Society, who worked tirelessly and passionately to support the cause. I also thank Jenny Rich, who did a great deal of work, and Emily Coleing, who was arrested that day, as was Keith Andrew, Nicola Bowskill, Hugh Paterson, Nick Hill, Dave Simmons, Heidi Chappelow, Marie Le Breton and Shanu Antoniacomi.


Those are just a few of the passionate and committed people; there are too many of them to mention. They were on the site with little more than their ideals. They had nothing to gain. They are passionate about the Blue Mountains environment, and Mount Hay and Butterbox Point are areas of stunning beauty. It was great to just sit and talk with those people-young and old, because a fantastic cross-section of the community attended-experience their passion for the area and see them doing what they could to retain it. I referred earlier in my speech to a statement made by Bob Carr. These areas are an embodiment of the Australian environment. These people were living the dream and belief that had been espoused by Bob Carr many years ago. The film company moved in that afternoon to construct the platforms and the flying fox for the Sydercam. Filming was to start on the Saturday. Justice Lloyd of the Land and Environment Court handed down his decision on Thursday morning 29 April. In it Justice Lloyd said:

In my opinion, the governing consideration in the present case is this: declared wilderness areas are sacrosanct.

He found that the filming authority approved by Simon Smith, Deputy Director-General of the Department of Environment and Conservation, was invalid. He said:

The proposed activity contravenes section 9 of the Wilderness Act [the management principles]. It is unlawful, and the approval and consent are also unlawful.

That should have been the end of the matter. Stealth had to find another site. They had been told over and over again, since December last year, that there were alternatives locations outside the wilderness area. In the court, the company responsible for the production of Stealth insisted that the film site at Mount Hay in the Grose Wilderness was "crucial" to their decision to shoot the film in New South Wales. Within days of the court ruling the director of Stealth found another site on council and private land in the Blue Mountains, at Mount Blackheath. As the director, Rob Cohen, told the Sydney Morning Herald, as reported on 6 May 2004, referring to the need to move to a new location, "We've actually made a better film." It was that simple because there were that many suitable areas. People who know the Blue Mountains intimately had been putting forward a significant number of alternative and suitable areas.

That brings me to the point: Whose fault is it if we are seen to be having some problems in attracting film-makers to New South Wales? I would suggest that the Premier and the Labor Government have to shoulder a great deal of the responsibility because of the way they have gone about dealing with this issue. Film companies want to come to a community that will give them a degree of support and co-operation. The conservationists offered that. But who was it who put out on the airwaves that it was the other way around? It was our Premier. A lot of damage has been done by the media beat-up. As members who have spoken in this debate have clearly indicated, we are at this stage dealing with a bill that will not allow Stealth to be filmed on that site in the Blue Mountains. So we are back to where we started!

This is classic Carr Government spin-bringing us back to the same point after a huge degree of agitation and, unfortunately, after a great deal of stress was endured by many fine and upstanding people in the Blue Mountains community who strongly disagreed with Bob Carr and their local member, Mr Bob Debus, on this matter. Bob Carr conducted a media conference on Thursday afternoon, the day of the court judgement. He said he was challenging the court's decision and would rush special legislation through Parliament if the court decision failed to ensure certainty for future filming in New South Wales national parks. Bob Carr said on ABC radio station 702 the next morning he believed the court was wrong, and added that:

… the message would go around the world, if these producers now can't shoot these scenes here, that there are real difficulties about doing things in Australia.

Much has been made, particularly through the limited talents of cynically opportunistic reporters at populist newspapers, of the giant dragonfly in this issue. Even today's Daily Telegraph carries a drawing of Richard Neville flying a giant dragonfly. Instead of the media being focussed on the hypocrisy of a Premier seeking to dilute the laws that protect wilderness areas-the very laws that he fought so hard to introduce-the giant dragonfly was belittled as some obscure and laughable justification for refusing the Stealth film crew access to the Grose Wilderness. A hundred and fifty people would have been walking in and around the swamp area where the giant dragonfly lives had the filming gone ahead. I repeat, 150 people, not 2 soldiers chasing a woman through a swamp.

The Hon. Jon Jenkins: On boardwalks.

Mr IAN COHEN: I acknowledge the interjection by that great professional on wilderness matters. They would not have been on boardwalks. They would have been moving over a limited area of ground-over a very sensitive area that harboured an endangered species.

The Hon. Jon Jenkins: The boardwalks are just there for looks!

Mr IAN COHEN: Rather than a meaningful message being left for posterity by members who come into this House, we have heard a communication reflecting a person who licks postage stamps. The member comes to this House by default to fill the shoes of someone who artfully dodged the democratic process.

The Hon. Jon Jenkins: Point of order. The member's comments are well and truly outside acceptable comment made in a second reading speech. He is engaging in personal abuse and vilification, and if the member wishes to pursue that course he should do so by way of substantive motion or some other form of the House.

Mr IAN COHEN: I accept that.

The Hon. Michael Egan: What? I wanted to hear what it was all about.

Mr IAN COHEN: I was referring to the honourable member's level of communication being equivalent to that of licking a postage stamp.

The DEPUTY-PRESIDENT (The Hon. Kayee Griffin): Order! I ask Mr Ian Cohen to confine his remarks to the subject of the bill.

Mr IAN COHEN: As I have said, 150 people would have been walking in and around the swamp area where the giant dragonfly lives had the filming gone ahead. An acknowledged expert in this field of science, Professor John Truman, of the School of Botany and Zoology at the Australian National University, said he believed no matter how careful the film crew may have been, damage would have occurred to the dragonfly's habitat in the swamp. I spoke to Professor Truman, and I asked him questions about this issue because I was keen to know whether more information could be found. I was aware that National Parks and Wildlife Service personnel were concerned to have actors avoid the central area of the swamp. However, in the opinion of Professor Truman, the central area of the swamp is awash at certain times, the dragonfly larvae are washed from the central area, and the problem areas become the areas around the edge of the swamp-which is were the actors were directed to go, supposedly to protect this endangered species. As well, this species is proven to be a very poor flyer, and therefore it is localised at that swamp. So this type of activity could have wiped out a significant proportion of an endangered species. I ask honourable members to think about this.

The Hon. Greg Pearce: National Parks and Wildlife Service officers had concerns too!

Mr IAN COHEN: National Parks and Wildlife Service officers, as I understand from another opinion that I have been given, were misinformed about the sensitivity of the site, and they thought they were resolving the problem by having the actors move round the edge of the swamp. However, in actual fact, the edges of the swamp, according to the opinion of Professor Truman, was the part of the site where most of the dragonfly activity took place.

The edges are where most of the dragonflies exist, and it is exactly where the actors would have run. For the benefit of the honourable member who interjected earlier, the actors would not run on wooden platforms they would run through a natural swamp. As the Hon. Greg Pearce said, in the first instance they would have to get into the swamp to build it. According to what the Premier said in his speech on the wilderness bill, one would have thought it would be one wilderness area in the whole scheme of national park protection in which an endangered species would receive complete protection. Earlier I quoted from Bob Carr's impassioned plea not to destroy the great natural areas of this country piece by piece. But when one dilutes this legislation, that is exactly what one starts to do. In the meantime the producers and the Government had withdrawn from any court challenge. Instead the Government turned its attention to its special legislation. The Government has introduced special legislation a number of times to override legitimate Land and Environment Court decisions and the aspirations of the community. It has to be challenged. Why do we have courts at all?

The Hon. Michael Egan: Parliament is the highest court.

Mr IAN COHEN: The Treasurer says that Parliament is the highest forum in the land. If that is so, why have courts? Why have Parliament? Why not rule by Executive?

The Hon. Michael Egan: You can't rule by Executive.

Mr IAN COHEN: That is what he wants. Logically, he would if he could.

The Hon. Michael Egan: I would quite happily rule on my own.

Mr IAN COHEN: Exactly! Therefore there are certain controls over the Treasurer's excesses, one of which is the courts. Just three working days after the Premier's announcement the draft bill was released. It was prepared under instructions of the Cabinet Office and it bears all the hallmarks of a rushed legal sledgehammer that provides the absolute legal certainty the Government wanted to provide for the film industry. Unfortunately, the bill was without long-held protections offered by the national parks and wilderness laws. But I am willing to acknowledge that the Government made one important concession. The bill would allow filming in wilderness areas for a small range of purposes only: educational, research, scientific and tourism. I thank the Government for turfing the stealth bomber film out of the wilderness, albeit consequential to the event.

Films such as the war movie Stealth can no longer be permitted in any New South Wales wilderness area, such as the gross wilderness. This is a good decision, and confirms that the motivations, actions, sacrifices and the court case by committed individuals and community groups to protect the gross wilderness were the right decisions. Their efforts were not in vain. But this is not the end of the matter. The Filming Approval Bill introduced by the Government claims to protect the environment. Yet the bill, outside the protection offered by the National Parks and Wildlife Act, the Wilderness Act and the Marine Parks Act, provides virtually no environmental protection. Regardless of location the approval framework placed no limit on environmental damage that could be caused.

Environment protection for our national parks would no longer be the primary purpose in the case of filming. New roads could be constructed, areas cleared, and sites exclusively occupied for an indeterminate period. Our national parks were to be managed more like film sets than national parks. There are a number of offensive clauses in the bill. Clause 4 (6) lists a number of conditions that the Minister can consider imposing. There are no mandatory requirements when considering an approval. The Minister has absolute discretion to grab an approval, regardless of environmental impacts. Clause 4 (9) turns off all other legislation to permit an approval to be granted. Clause 6 ensures that no other approvals under the National Parks and Wildlife Act, Wilderness Act or Marine Parks Act are needed. It makes one think that the bill was drawn up with the presumption that the Labor Government will be in power in perpetuity. One wonders what a Coalition government would do with this type of legislation. I suppose we will find out one day.

The Hon. Michael Egan: You don't think the Greens will ever come to power?

Mr IAN COHEN: Only moral power. There are no third-party appeal rights and there is no requirement to disclose the results of a decision. The Government even forgot to put in a penalty system to ensure that a fine could be issued if a film company did not follow the consent conditions. The legislation was written as if it were a green light for any potential filmmaker who wanted to use a New South Wales national park. The Carr Government boasts that it is film friendly. This is "The Come Film In Our National Parks Because We Do Not Care About The Environmental Impact Bill". Better environmental protection is provided for filming in a council bushland park. The Minister for the Environment continued to deny these problems and said that it was nonsense that the right to enforce the approvals granted under the bill was removed and that the bill "strengthens the tough environment standards already in place."

The Minister for the Environment referred to the requirement that still existed to undertake an environmental assessment. We all know how useful independent and accurate environmental impact statements [EIS] can be. Certainly there is a benefit in going through the process, but if the government is determined to approve an application we all know that an EIS will do little to stop it. National parks and wilderness laws, some of which Bob Carr was responsible for, provide important checks on the impact of activities in national parks. These laws say to tread carefully, the environment comes first, and high impact development and activities are categorically ruled out. The Filming Approval Bill takes filmmaking in national parks outside of these laws. There is one rule for filmmakers and one for the rest of the community. This is an alarming precedent and should be stopped.

We are already seeing a trend. Recently we saw it when the Carr Government passed special legislation to automatically approve the cloud seeding experiment in Kosciusko National Park without any form of public environmental assessment for our most sensitive national park. The Greens are on the record as supporting filming in national parks, but only when the impacts are no more than they would be if anyone else were using the park. A private tour company that applied to lead a short commercial day walk to Butterbox Point near Mount Hay where the filming of Stealth was to take place was told by the Department of Environment and Conservation that the area was too sensitive to run the tour. The principal of that company joined the protest at Govetts Leap on the day before the film company tried to move out to the site. The Government is not being fair.

Bob Debus, the Minister for the Environment and local member for the Blue Mountains, hysterically attacked conservationists and others in the local press, including Keith Muir, director of the Colong Foundation, for raising real concerns about the draft legislation. Keith was the driving force behind the listing of the great Blue Mountains as world heritage. Recently he was awarded an Order of Australia medal for his efforts. He also labelled as complete rubbish the concerns made in the other place by Clover Moore. I say that Bob Debus' claims are complete rubbish. He has deliberately confused, exaggerated and misled the public into believing that the Filming Approval Bill is good for the environment. I am pleased to say that the Government now realises that the bill was wrong: it was an overreaction and bad for the environment. I am informed that it is now willing to accept amendments that will remedy the problems raised by the environment groups.

I can foreshadow a series of amendments that I will move in Committee that I believe the Government will support to improve the worst aspects of the Filming Approval Bill. I will seek to tighten the definition of filming activity to prevent filming equipment and personnel unrelated to filming from entering a national park. The current language of the bill is too discretionary, for example in the granting of conditions. It is essential that criteria be established in the bill that stipulate what the Minister must have regard to when determining an application to film, for example, heritage values, cultural significance, management plans and feasible alternatives to wilderness areas. The bill needs to clarify what is meant by education, and scientific and research purposes based on the definitions provided by the Minister for the Environment in his reply to the second reading debate in the other place. It is vital that the bill is strengthened to ensure that the Minister is satisfied about the criteria before determining whether or not to issue a filming approval.

Debate adjourned on motion by the Hon. Ian Cohen.

[The Deputy-President (The Hon. Kayee Griffin) left the chair at 6.32 p.m. The House resumed at 8.30p.m.]

Subjects: National Parks; Films; Environment.
Speakers: Macdonald, The Hon Ian; Pearce, The Hon Greg; Cohen, Mr Ian; Harwin, The Hon Don; Deputy-President (The Hon Amanda Fazio); Deputy-President (The Hon Kayee Griffin).
Version: Proof NSW Legislative Council Hansard Article No.40 of 02/06/2004.
Speech Type: 2R; Bill; Debate; Motion.