Greg Hunt (Flinders, Liberal Party, Minister for the Environment) Share this | Link to this | Hansard source

by leave—I present a supplementary explanatory memorandum to the bill and move government amendments (1) and (2), as circulated, together:

(1) Schedule 1, page 3 (lines 4 and 5), omit the heading.

(2) Schedule 1, item 1, page 3 (lines 6 to 14), omit the item, substitute:

1 Non -compliance with requirement to have regard to any approved conservation advice before 31 December 2013

  If a provision of the Environment Protection and Biodiversity Conservation Act 1999 requires the Minister to have regard to any approved conservation advice, then a thing is not invalid merely because the Minister failed, when doing the thing or anything related to the thing at any time before 31 December 2013, to have regard to any relevant approved conservation advice.

As I indicated earlier on during the summation on the second reading debate, these amendments have been considered in discussion with the opposition. They represent two elements. They represent an agreement that we will ensure that there is adequate coverage and protection for those matters which were determined by the previous government and will continue to be considered by the present government until 31 December of this year. It is done so that technical challenges are not used as a means of overcoming substantive decisions. This could cost, literally, millions and millions of dollars in litigation fees as well as tens of millions of dollars in delays to properly approved and considered projects. It is done in a spirit of cooperation and consideration. The amendments, in particular, sunset this clause as of 31 December this year. That has been done at the request of and in consideration of the points raised by the opposition.

I commend the amendments to the House. I note that they represent a healthy spirit of cooperation.

Mark Butler (Port Adelaide, Australian Labor Party, Shadow Minister for Environment, Climate Change and Water) Share this | Link to this | Hansard source

I thank the minister for his remarks and for giving us notice of this late amendment on the government's part. I will make a few remarks about the origin of this amendment. It has its origin in a decision of the Federal Court earlier this year which invalidated a decision of the former minister, or the then minister, on the grounds that the conservation advice for a listed species, the Tasmanian devil, which was impacted by the controlled action submitted for approval, had not been placed before the minister at the time he made the approval decision. It is quite clear from reading the Federal Court decision and from reading the minister's decision on that matter that he had very extensive regard to the position of the Tasmanian devil and the potential impact of the controlled action on the Tasmanian devil, which is obviously a threatened species in Tasmania—and a very high-profile threatened species.

If you look at the decision you will see that there are a number of conditions imposed by the minister on the controlled action to take account of the position that the Tasmanian devil is in in Tasmania, which I think all members of the House know is relatively precarious. I think it is fair to say that the Federal Court decision, with the greatest respect, was something of a technicality. It is quite clear that all of the information contained in the conservation advice was before the minister in other forms through a lengthy process of his consideration of this application. So the full gravamen of those matters in the conservation advice were reflected in his decision.

The opposition is willing to support this amendment to give some certainty to controlled actions, which have been considered in the past—often through lengthy and expensive processes of EIS and public consultation and other processes—to ensure that those controlled actions comply with the spirit and, as far as possible, the letter of the EPBC Act. I think it is a good compromise that the minister has proposed, and we are willing to support it. We would not have supported an amendment that would have barred any legal action, ad infinitum, into the future because a minister had not had a conservation advice placed in front of him or her. This is a strong compromise, and the opposition will support this amendment.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

There is something going on here, and it deserves far more scrutiny than it is being given at this moment. This amendment will apply retrospectively and it will say that, for any decision that has been made until now, it does not matter if the minister did not pay any regard to expert conservation advice about how a species can be threatened. They will be off the hook. It has to be about more than the case that is being litigated in the court at the moment, because that has been adjudicated upon.

If you are at all thinking that this is some conspiracy theory, the minister let the cat out of the bag when, in his surprise at Labor's changing its position, said this a few moments ago in his second reading summing up speech: 'This amendment is fixing up the mess caused by the previous government. We are helping them out. There could potentially be more challenges based on technicalities. These could cause endless delay without having had the substantive base for improper decision making. We know that the other side'—that is, Labor—'is in agreement with this. What they are doing at the moment is in breach of what we understood to be the direction they would head in.' Then he said that everything that has happened until now will give you an out-clause. So presumably some decisions have been made without taking regard of the expert conservation advice. The minister should get up and say what those decisions are.

If we are being asked at no notice, at 10 past eight at night, to give this government and previous governments an out-clause, and the minister says, 'It's because there are potential grounds for challenges to decisions,' then simply as a matter of honesty and disclosure to this House, let alone good decision making—given that the minister just a few moments ago said there are potential legal challenges which could be made unless we rush this amendment through—it is now incumbent on the minister to say what those decisions are. What are the decisions that have been made by the previous government or by this government prior to today that are potentially the subjects of this amendment? The minister will have ample opportunity to answer that specifically. We are not interested in generalities. We know that one decision has been before the Federal Court, but he has let the cat out of the bag, so now he should explain to us exactly what is being covered up in this sordid late-night deal between Labor and the coalition to exclude the best practice environmental laws that have been in place for some time. If he does not answer or get up a couple more times during this detail stage to answer, perhaps the shadow minister at the table, who might have been the minister at the relevant time of any decision, would care to answer. Obviously—and we know this from the Hansarddiscussions have gone on to try to get the government out from under bad decisions that have been made, and we have the right to know what they are. That is the first point, and I am waiting to hear from the minister or the shadow minister as to what the decisions are that are going to be affected by this.

Secondly, the minister in his summing up said, 'We are not even requiring that this protection apply to us.' The minister said this was about the previous administration: the former Labor government before 7 September. If that is right, then perhaps the minister can explain why the amendment says it applies to decisions that are made any time before 31 December 2013. I say this with respect to the minister: it cannot be the case that he is seeking this only to apply to previous administrations, because the amendment he is moving says '31 December'. Many, many decisions can be made between now and 31 December. We know that Abbott Point is one of them. Perhaps the minister can explain, given that he will have ample opportunity to do so, why he said in his summing up that he is only seeking this with respect to the previous government but moving an amendment that applies until 31 December. Everyone should be very worried about this last-minute deal that has been done between Labor and the coalition to weaken our environment protection laws. (Time expired)

Greg Hunt (Flinders, Liberal Party, Minister for the Environment) Share this | Link to this | Hansard source

Very briefly, I can assure the House that, in relation to any specific decisions of previous governments, I have no advice either formally or informally that pertains to any particular decision. This legislation was brought in on the advice that the previous processes could always have been open to challenge on technicalities. There is no specific information. I say that as a formal point in this chamber, with all of the rules of the House.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

As I expected might happen, the minister referred to one part of what I said and not to another. The minister said in his summing up that he is not requiring that the protection apply to the current government. If that is the case, why doesn't the amendment read 'at any time before 7 September'? Will the minister now, in accordance with what he told the House a few moments ago in his second reading speech, agree to amend his amendment that is currently on the floor and change '31 December' to '7 September'?

Greg Hunt (Flinders, Liberal Party, Minister for the Environment) Share this | Link to this | Hansard source

Very briefly: this has been done to provide certainty and to deal with all of those that are currently in the pipeline. There are no games and no tricks. We set this out as a long-term process, and, in the spirit of cooperation with the opposition, to ensure that past decisions were not subject to being overturned on technicalities we have agreed on this approach. It is as simple as that.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I have a further question for the minister. Does the minister accept that, if the amendment that he is moving is passed, he will be able to make a decision with respect to Abbott Point without having to have any regard to expert conservation advice?

Greg Hunt (Flinders, Liberal Party, Minister for the Environment) Share this | Link to this | Hansard source

Actually, I can guarantee that every decision I have taken and every decision I will take is made with reference to expert conservation advice, in the presence of the conservation advice and after consideration of the conservation advice. This was a position inherited as a consequence of the previous legal decision. So I can give the guarantee on the floor of this House—again, subject to all of the strictures which apply to ministerial statements on the floor of this House—that all decisions that are relevant to date have been taken with consideration of the conservation advice, in the presence of the conservation advice and through examination of the conservation advice and that will continue to be my practice.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I will ask the minister again: when he said in his second reading debate summing up, 'We are helping them out,' referring to the previous Labor government, in what way is he going to be helping the previous Labor government out by passing this amendment?

Greg Hunt (Flinders, Liberal Party, Minister for the Environment) Share this | Link to this | Hansard source

I think this will be my final intervention. The point here is that decisions were taken by the previous government. They were taken in the manner to which I do not have insight—that is, not something that is known to me. Again, I give that undertaking. But on the basis of the court case in question—on the basis that that applies to at least one case—there could have been massive uncertainty to projects already begun on any possible number of cases. I do not know which they are because I have no insight into the decision-making process or the decision-making documents of the previous government. That is the convention on the passage of government.

What we have done is, very simply, to try to provide certainty in the Australian economy—certainty to projects mad—and to uphold the existing standards whilst also applying to ourselves the highest standards. So we deal with the conservation advices. They are present, they are examined and they inform the advice of the department. That has been the practice since the formation of government, and that will be the continuing practice as we proceed.

Mark Butler (Port Adelaide, Australian Labor Party, Shadow Minister for Environment, Climate Change and Water) Share this | Link to this | Hansard source

I feel obliged to respond to some of the comments from the member for Melbourne about the minister potentially moving this amendment to help us out. I did not hear those remarks when the minister introduced this amendment. They reflect on our party, so I feel the need to respond to them. I assure the House that in no way are we supporting this amendment through any sense of being helped out by the minister and that I do not understand that to be his primary motivation at all.

As I tried to indicate when outlining the history of this decision, this, in our very clear view, was a decision taken on the basis of a technicality by the Federal Court. There was a very detailed, lengthy—exhaustive, I dare say—process of considering the impact on threatened species, particularly in this case the Tasmanian Devil, of this controlled action. Reasonable people might disagree about the outcome of that decision, but there is no question that can be legitimately asked about whether or not the impact on this threatened species was considered in great detail.

The reason we are supporting this amendment is that there were potentially a number of other controlled actions. I do not know how many, and I do not know their circumstances. But, potentially, given the nature of the Federal Court decision, a number of controlled actions in the past which may go back quite some considerable time went through very lengthy, expensive and exhaustive processes of consideration under the EPBC Act and are now fairly well advanced. In good faith the decision of the then minister should now be given that certainty. If we took the view that the decision by the Federal Court was anything more than a technicality and that there was something substantively missing from the process which was undertaken by the department and by the minister, we would not be supporting this amendment. We do not take that view, and that is why we support it.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I give the minister one final opportunity to amend the date so that it does not apply to decisions that might be made prospectively by him from between now and the end of the year.

Natasha Griggs (Solomon, Country Liberal Party) Share this | Link to this | Hansard source

The question is that the amendments be agreed to.

A division having been called and the bells having been rung—

As there are fewer than five members on the side for the noes in this division, I declare the question resolved in the affirmative in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.

Question agreed to, Mr Bandt and Mr Wilkie voting no.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

There have been a number of amendments circulated by me. I will not ask leave to move them together but will move them separately. I move amendment (1) as circulated in my name:

(1) Schedule 1, page 3 (lines 1 to 28), omit the Schedule.

and I refer to the reasons given during my speech on the second reading for that amendment.

Natasha Griggs (Solomon, Country Liberal Party) Share this | Link to this | Hansard source

The question is that the amendment be agreed to.

Question negatived.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I move amendment (2) as circulated in my name:

(2) Page 14 (after line 23), at the end of the Bill, add:

Schedule 3—Amendments relating to retaining Commonwealth responsibility for approving proposed actions that significantly impact matters of national environmental significance

Environment Protection and Biodiversity Conservation Act 1999

1 Paragraph 11(a)

  Repeal the paragraph.

2 Division 1 of Part 4

  Repeal the Division.

3 Paragraphs 44(c) and (d)

  Omit "and approval".

4 Subparagraphs 45(2)(a)(iii) and (iv)

  Omit "and approval".

5 Section 46

  Repeal the section.

6 Subsection 48(3)

  Repeal the subsection, substitute:

(3) Subsection (1) does not limit section 47.

7 Subsection 48A(1)

  Omit "46 or".

8 Subsection 48A(1)

  Omit "(2) or" (first occurring).

9 Subsection 48A(1)

  Omit "subsection (2) or (3) (as appropriate)", substitute "that subsection".

10 Subsection 48A(2)

  Repeal the subsection.

11 Subsection 51(1)

  Omit "(1)".

12 Subsection 51(2)

  Repeal the subsection.

13 Subsection 51A(1)

  Omit "(1)".

14 Subsection 51A(2)

  Repeal the subsection.

15 Subsection 52(1)

  Omit "(1)".

16 Subsection 52(2)

  Repeal the subsection.

17 Subsection 53(1)

  Omit "(1)".

18 Subsection 53(2)

  Repeal the subsection.

19 Subsection 54(1)

  Omit "(1)".

20 Subsection 54(2)

  Repeal the subsection.

21 Section 55

  Omit ", or accredit for the purposes of a bilateral agreement a management arrangement or an authorisation process,".

22 Subsection 59(1) (examples 1 to 3)

  Repeal the examples.

23 Section 64

  Repeal the section.

24 Section 65A

  Repeal the section.

25 Section 66

  Omit "(It does not deal with actions that a bilateral agreement declares not to need approval.)".

26 Paragraph 77A(1A)(b)

  Omit "relates; or", substitute "relates."

27 Paragraph 77A(1A)(c)

  Repeal the paragraph.

28 Paragraph 78(1)(ba)

  Repeal the paragraph.

29 Subsection 82(2)

  Omit "1,".

30 Subsection 82(2)

  Omit "bilateral agreement or".

31 Subsection 146(2) (note 2)

  Omit ", or make a bilateral agreement declaring,".

32 Section 528 (definition of bilaterally accredited authorisation process )

  Repeal the definition.

33 Section 528 (definition of bilaterally accredited management arrangement )

  Repeal the definition.

This is a very important amendment. What this will make sure is that there is no capacity for the federal government to effectively hand off to state governments the power to make major environmental approvals and—as I mentioned during my speech on the second reading—to say that, just because a state government has done something, 'That is good enough.' It is only because the federal government had the power to step in and override that that we stopped the damming of the Franklin. That is at risk unless this amendment goes ahead, because what we know—and we have heard it very clearly from this government—is that the Campbell Newmans and the Barry O'Farrells are, in the government's mind, apt protectors of our environment. This government does not mind if Premier Campbell Newman is in charge of the reef. This government does not mind if Premier Denis Napthine has carte blanche to let cows roam in the Alpine National Park—to turn the park into a paddock.

George Christensen (Dawson, National Party) Share this | Link to this | Hansard source

Hear, hear!

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I hear a member of the government cheering loudly, and the government has just belled the cat and shown that what this is about is giving to the states the power to make decisions about major areas of national significance—things of which most Australians would presume that, if there is a federal law, would get federal protection. Most Australians would presume that, when it comes to dealing with threatened species, the federal government, under the federal legislation, will look after them. But what we know is that this government cannot act quickly enough to hand that power over to the states. That would have seen the Franklin dammed. It would have meant no powers to stop oil drilling on the Great Barrier Reef. It speaks volumes among the first environmental legislation that this government wants to get through by the end of the year is that which will weaken environmental protection in this country.

The Greens have been consistent. Even when the previous government went a bit wobbly on this and said, 'Maybe it would be a good idea to hand off some of these powers to the states,' we stood up to protect the environment. I hope that, when there is a division on this amendment, there will be a change of heart from the Labor Party, because it is absolutely vital that this parliament offer the strongest possible protection for areas of national environmental significance. So, for those reasons, and for the reasons that I mentioned during my speech on the second reading, I urge this House to approve amendment (2).

Greg Hunt (Flinders, Liberal Party, Minister for the Environment) Share this | Link to this | Hansard source

The government rejects the amendment proposed by the Greens for a very simple reason: we support one-stop shops. We support the idea of simplification. We support the idea of maintaining standards whilst also reducing bureaucracy and delay. If we want to get the economy moving and protect the environment, the one-stop shop is the way. It was also the way proposed at the April 2012 COAG agreement by the then Labor government, which said, to quote the communique:

First Ministers reaffirmed COAG’s commitment to high environmental standards, while reducing duplication and double-handling of assessment and approval processes.

So this was the ALP's policy in government: to support the idea of a one-stop shop for both assessment and approval processes. We are bringing that into practice in government. We are making enormous progress. We do not accept this amendment. It does not help the environment. It does enormous damage to projects. We respectfully decline to support it.

Mark Butler (Port Adelaide, Australian Labor Party, Shadow Minister for Environment, Climate Change and Water) Share this | Link to this | Hansard source

We will support the amendment moved by the member for Melbourne. The minister is not correct to say that this was Labor policy. You are right that the delegation of approvals was the policy of Labor when we were in government. But it was something we explored through the COAG process and decided not to proceed with.

Let us be very clear: there is a very clear policy difference between the Labor Party and the coalition when it comes to environmental protection. This has been a long-standing pillar of environmental protection for 30 years. It is a little over 30 years since the High Court decided to uphold the then federal Labor government's decision to protect thousands of hectares of pristine Tasmanian forest from the damming of the Franklin and Gordon rivers. Since then, this has been a fundamental policy difference between the two major parties, and, as it was in the Franklin Dam case 30 years ago, it has often been a matter of some considerable controversy.

I want to put to bed this idea that we are not supportive of significant streamlining in environmental assessment processes. A one-stop shop at the end of the day really should be about streamlining and removing duplication in environmental assessments to make sure that there are not two environmental impact statement processes and that there are not two public consultation processes. We are all up for that discussion, but as a matter of principle there must in our view always be the capacity of the national environment minister to deal with matters of national environmental significance. For that reason, we support the amendment moved by the member for Melbourne.

Natasha Griggs (Solomon, Country Liberal Party) Share this | Link to this | Hansard source

The question is that the amendment be agreed to.

The question now is that the bill as amended be agreed to.

Bill, as amended, agreed to.

Bill read a second time.