Nick Xenophon (SA, Independent) Share this | Hansard source

I indicate that I too believe that these investments ought to be insisted upon, notwithstanding that Senator Conroy said that these amendments were an 'act of lunacy'. Let us put this in perspective. The points raised by Senator Heffernan, which were the trigger for these amendments and which were supported by a rainbow coalition, if you like, of the Greens, the DLP, the Liberal Party, the National Party and an Independent, indicate that there were some genuine concerns here that what was being proposed was simply not good enough. What the government has come up with is a compromise. That compromise is still an improvement on what was initially proposed, and I think it is an acknowledgement that the legislation needed greater clarity.

I want to make reference to an advice that I received from the Deputy Clerk of the Senate in relation to these amendments. I will seek leave to table it in due course, but I do want to read from that advice because I think it is important to put it in perspective because an issue has been raised about the constitutionality of what has been proposed. This is advice from the Deputy Clerk of the Senate, Mr Richard Pye, dated 12 September 2012. I will read that into the Hansard. I see the deputy clerk is in the chamber, and I am sure he will not mind because his advice is as transparent as always. The advice says:

You have asked for advice regarding amendments proposed by you (also on behalf of a number of other senators) and made by the Senate to the Environment Protection and Biodiversity Conservation Amendment (Independent Expert Scientific Committee on Coat Seam Gas and Large Coal Mining Development) Bill 2012.

As you know, the bill amends the Environment Protection and Biodiversity Act 1999 (the EPBC Act) to establish an Independent Expert Scientific Committee on Coat Seam Gas and Large Coal Mining Development. Under the bill, this committee is an independent statutory committee set up under a new Division under Part 19 of the EPBC Act. The amendments provide that the committee may advise on "land and its use", in addition to "water resources" in the context of its research and advice to the Minister in relation to particular coal seam gas issues.

In my view, these amendments do not raise constitutional issues, for a range of reasons.

First, the amendments are within the existing constitutional authority of the Commonwealth in this area, as reflected in the EPBC Act. Under the EPBC Act, the Commonwealth Minister for Environment is responsible for assessing and making decisions on coal seam gas proposals, if those proposals are likely to impact on matters protected under Commonwealth environmental Law. Although the states have primary responsibility for environmental protection, the Commonwealth has authority over defined matters of national environmental significance (of which approval of coal seam gas projects, in certain circumstances, is one). Neither these amendments - nor the bill for that matter - disrupt the existing responsibilities of states in respect of environmental matters. The amendments are solely limited to conferring an additional ability on the Committee to look at "land and its use" (in addition to "water resources") in the course of its advice to the Minister and do not expand the Minister's powers in any way.

Secondly, the committee is established to provide advice, primarily to the Commonwealth Minister for the Environment, on a range of matters to do with coal seam gas and large coal mining developments. The committee does not exercise any power, and its advice is provided to inform the Minister prior to him or her deciding whether or not to approve a project. The Minister is not bound by the committee's advice, and any decision that the Minister took would of course need to be within the bounds of the Minister's constitutional power, and that of the Commonwealth (through the EPBC Act, and other relevant Acts).

Thirdly, section 13 of the EPBC Act confirms that the Act is not intended to exclude or limit, in any way, the operation of a law of a State or Territory. These amendments, having amended a bill which seeks to insert new provisions into the EPBC Act, will be subject to section 13.

Essentially, that is the advice of the Deputy Clerk in relation to this. I thought it was best to read it because his advice articulates it much better than I could ever have set it out. I seek leave to table that advice from the Deputy Clerk.

Leave granted.

I believe these amendments ought to be insisted upon. I understand that, as a result of negotiations between the government and the opposition, there is a different position in respect of salinity. I will not criticise the coalition for going down that path. I regret it but I understand that there were a number of constraints upon them and that this is a compromise that they have reached based on the initial amendment, which I still believe is a worthy amendment and I will be voting with my colleagues in the Australian Greens in respect of that amendment.

It is clear that this committee is only an advisory committee, as the advice from the Deputy Clerk points out. This committee is there to give advice to the minister and, by including 'land and/or its use', it is simply making the work of the committee clearer. It is simply making this piece of legislation more functional and more effective to deal with coal seam gas and the impact it can have on communities. Simply to narrow its use to 'water resources' is too narrow. Including 'salinity', of course, impacts on land use, and that is a welcome development. So the compromise position is an improvement, but I still maintain that including 'land and/or its use' would not only not be unconstitutional—in other words, its constitutionality is not in question; it would have been a sensible amendment to the legislation.

I am grateful to Senator Heffernan, who I think ought to be acknowledged in this place by all sides of politics as having enormous knowledge of the land and the use of land, of farming and its practices and of water resources, for raising this issue. What we will end up with is disappointing, but it is still better than the original bill. Therefore the exercise has been a useful and productive one in terms of making this piece of legislation more effective and, in a sense, more transparent, but, above all, hopefully it will lead to an outcome of providing the appropriate scrutiny of coal seam gas developments and, therefore, we should maintain that these amendments be insisted upon. I am a realist and a pragmatist, and I know that what we will end up with will be less than perfect, but it will still be an improvement on the original bill.