Zoe Daniel (Goldstein, Independent) Share this | Hansard source

It's becoming a bit of a habit, isn't it? Once again, we're being asked to rush undercooked legislation through the House and, worse, once again the government is packaging two utterly unrelated legislative objectives into a single bill. Now we're seeing the government make urgent twelfth hour amendments to its own legislation in light of significant interest group and crossbench concerns—and, it seems, the belated concerns of some of its own backbench, who initially took at face value the caucus briefing from the resources minister. It seems they only woke up to what was going on once crossbenchers raised the alarm after a similarly anodyne briefing from the minister.

All the emphasis was on the safety element of the legislation and then, almost as an afterthought, 'Oh, there's a bit of a change to the approval process, but it's not a big deal'—or words to that effect.

This reflects poor legislative practice and, arguably, a lack of good faith. The thing is that the crossbench reads legislation, so trying to slip this kind of thing into bills is also poor strategy. Did the government think we wouldn’t notice?

My view on this legislation can broadly be captured by a single phrase: it's all in a name—or, rather, in this case, what is not in the name. By virtue of its title and how it's been presented to the parliament, one could be forgiven for mistaking the central policy objective of this bill as relating to workplace safety. Until now, I was yet to see a bill which so silently delivers more for the 'other measures' side of its name than its ostensibly principal safety side. 'Other measures' is being called on to do an awful lot of work here.

Two principles underline my concerns with this legislation. The first, as I've already mentioned, is the principle of good legislative practice. The second is the substance of much of schedule 2, the 'other measures', and the risks that these proposals pose to environmental protection, genuine First Nations engagement and the importance of integrity in good governance.

The genesis of this legislation appears to be what might politely be referred to as 'pressure' by Japan and South Korea. Earlier this month the Saturday Paper reported the Chief Executive Officer of Japanese resources company Inpex telling a function hosted by the resources minister that the government's decision to cap domestic gas prices and insist that supplies were not diverted offshore was 'damaging Australia's hard earned international reputation as a premium trading partner'. He demanded 'certainty in policy direction and a stable regulatory framework'.

The government seems to have received that message loud and clear. First came the euphemistically titled Environment Protection (Sea Dumping) Amendment (Using New Technologies to Fight Climate Change) Bill 2023. In fact, the legislation was little more than a sop to Santos, which had threatened to pull the pin on its Barossa offshore gas project unless the government agreed to allow the sequestration of vast amounts of carbon dioxide under the sea. All this, even though carbon capture and storage has not yet worked at scale anywhere in the world and, according to some experts, never will. There are also a range of open questions about its environmental impact.

Now the second shoe has dropped with this legislation, also apparently designed as a sop to the resources sector. Let's be real. How much does this legislation have to do with the fact that the government depends for its majority on the four seats it gained in Western Australia at the last election, the fact that the resources sector has an outsize ability to influence public opinion in WA and the fact that that state's media are the most concentrated, if not monopolistic, in the country?

The government has clearly heard the quite significant concerns voiced by me, the rest of the crossbench and industry-leading experts on the non-worker-safety related provisions in this legislation. The minister's introduction of last-minute amendments over the weekend is a clear sign of just how unacceptable the original legislation was, not only to the crossbench but also to elements within the minister's own party. It would be preferable if those backbenchers were prepared to stand up and be counted. But the fact that they've raised their concerns behind closed doors is positive. The amendments are a start, but the government would need to go much further to assure me—and the Australian public, I believe—that this legislation would not seriously undermine the integrity of Australia's environmental protection regime.

I reject the government's suggestion that consultation between two ministers to determine whether regulation is 'not inconsistent' with ecologically sustainable development principles enshrined in the EPBC Act would be sufficient to uphold the integrity of Australia's existing environmental protection system. 'Not inconsistent' is legislative backwards gobbledygook if ever I've seen it. Why not simply make it 'consistent' with ESD principles? Unfortunately we don't know, because these amendments have been introduced without the opportunity of a briefing from the responsible minister. On the basis of the supplementary explanatory memorandum, it looks like the government wants us to believe that the environment minister is being brought back into the process. That's just where she's been under current law and where she should be into the future.

The amendments go through a series of contortions worthy of Houdini himself to give the environment minister some role in this increasingly convoluted process. As the Australian Conservation Foundation notes:

The changes allow for exemptions from Australia's environment law for offshore gas project approvals to be switched off by the Environment Minister if she is not satisfied that changes to the regs are not inconsistent with ecologically sustainable development principles.

The double negative doesn't provide much confidence for people who value nature protection or First Nations' rights to say no to projects they don't want on their Country.

The original legislation, before these amendments, would have given the resources minister significant ability to limit the powers of First Nations people to be consulted on resources projects and to raise objections. It is very difficult to see how the amendments as they stand overcome these concerns.

All in all, this is an extraordinarily low standard for this government to hold itself to—a government ostensibly committed to delivering ambitious Nature Positive EPBC reform. Meeting such a definition—one steeped in vague and confusing double-negative language—is likely to be ineffective in imposing substantive boundaries on ministerial decision-making. The fundamental point remains: no consultation between ministers would be necessary if the government had acted with greater speed to reform the Environmental Protection and Biodiversity Conservation Act.

As for the proposed sunset clause in this bill, it's good as far as it goes, because the carve out for resources project approvals is no longer permanent. But the provisions do not appear to be limited to the changes to consultation that the government says are the purpose of the amendments. The government was elected on a commitment to deliver ambitious environmental protection reform via the amendment of the EPBC Act. Numerous delays have left crossbenchers, including me, and experts and interest groups in suspense as to whether the final shape of these proposed reforms will correspond to those outlined in the government's Nature Positive Plan.

With consultation and work actively underway, the government should resist carving out particular reforms and instead focus on delivering holistic reform to Australia's environmental protection regime as it promised to do. In my view, holistic environmental reform would at the very least include: a truly independent Environmental Protection Agency with zero ministerial capacity to interfere with decision-making, whether it involves three ministers, two ministers or just the one; ambitious and upfront protections for habitats of threatened species; no weakening of biodiversity-offsetting frameworks; consideration of how project approvals may worsen climate change; and genuine engagement with First Nations people.

I began my speech by talking about patterns and principles. In the context of environmental policy, our nation needs less resort to the former and much more implementation of the latter. I want to make my position on this very clear. Australia currently stands at a unique political moment where historic reforms to the EPBC Act are now within reach. This has not been the case for many decades, and, if we miss this genuine opportunity, we may not get another for many more. Our environment, our biodiversity and, indeed, our future will be much the worse for it. On this bill, therefore, I stand by my stated position—that the EPBC carve out should be removed. As it stands, I will not vote for this bill.

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