Anne Urquhart (Tasmania, Australian Labor Party) Share this | Hansard source

I rise to speak in this debate on the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014. Earlier in the year I participated in the Senate's Environment and Communications Legislation Committee inquiry into this bill. In Labor's dissenting report, I noted three major concerns with the bill.

Firstly, submissions were overwhelmingly of the opinion that the bill would lead to a more complicated process—an eight-stop shop where each jurisdiction has a different approvals process. Secondly, the clear majority of evidence to the committee was that the bill does not contain adequate safeguards to ensure the maintenance of current environmental standards. I remain particularly concerned at this evidence, given the track record of the Abbott coalition government over the past year on the environment. Thirdly, the arguments in the chairs report, in support of the bill, were mostly mere assurances from the environment department about the adequacy of the proposed processes. This was due to the overwhelming number of submissions that provided strong evidence, highlighting flaws in the bill and the government's policy.

Further, public comment in support of the bill, in the chair's report, was largely focused on the perceived reduction in cost for industry. However, the department could not outline what had changed since the 2012 decision, by the previous Labor government, to stop the process to progress approved bilateral agreements, apart from an election commitment by the Abbott coalition government. Despite the flawed chair's report into the bill, it was clear from the inquiry that the bill should not pass. It fails to reduce regulation and it fails to maintain and strengthen environmental protection.

In 2011, the then Labor government released its response to the independent review of the EPBC Act, commonly referred to as the Hawke review. In its response, the Labor government committed to achieving better environmental outcomes while improving the efficiency of the management of matters of national environmental significance and providing more certainty for business. This included a shift from individual approvals to strategic processes and the development of more efficient assessment and approval processes. Following this response, COAG agreed in April 2012 to prioritise approval bilateral agreements under the EPBC Act. Discussions about approval bilateral agreements were held with the states and territories, and a draft framework of standards for the accreditation of environmental approvals was released in November 2012.

At its meeting of 7 December 2012, COAG considered issues related to reform of environmental regulation. While discussions with all jurisdictions were constructive, the Labor government concluded that the significant challenges that emerged meant that providing both certainty and consistency for business and maintaining high environmental standards could not be achieved through an approval bilaterals process and did not progress this agenda. Instead, a focus was put on meeting common information requirements, eliminating duplication and avoiding delayed approval processes.

The current government often refers to the approval bilaterals process, begun under the previous Labor government, as part of an argument for Labor's hypocrisy. This is clearly a misleading argument, as Labor explored the option of pursuing approval bilaterals with the states and found that they would not lead to better environmental or business outcomes. This remains the position of federal Labor. Federal Labor shadow minister Mark Butler summarised Labor's opposition to these changes in his second reading speech on the bill:

But at the end of the day we take as a matter of principle the view that matters of national environmental significance—which is the scope of matters covered by this legislation—must remain the province of a national government. That is not a party political perspective. Whether it is a national coalition or national Labor government and whether it is state Labor or state Liberal governments, our view is the same: the Commonwealth should have responsibility for matters of national environmental significance, for a whole range of reasons that I have tried to outline.

I now turn to specific concerns with the bill and the arguments in the chair's report that I raised in the inquiry's dissenting report. Nearly all of the submissions received opposed the one-stop-shop reforms for some, or all, of the following reasons: that it will add complexity to approval processes; that it will not result in any efficiency gains; that, currently, no state or territory has sufficient resources or the appropriate environmental processes in place to adequately assess actions that may impact on national environmental standards; that it would result in a diminution of current environmental standards pertaining to matters of national environmental significance; and that it would create potential conflicts of interest.

The chair's report dealt with complexity, for the inquiry uses an extract from the department's submission that highlights that the lack of consistency between the Commonwealth and states and territories can lead to differences in processes in outcomes and time frames, to argue in support of the changes. However, the bill will clearly not result in one uniform environmental approvals process for all states and territories. There will continue to be a lack of consistency between the Commonwealth and states and territories in assessing matters of national environmental significance because the bill allows states and territories to keep their own processes as long as they meet national standards rather than seek to harmonise approvals processes for matters of national environmental significance.

The bill will entrench the differences between states and territories. Companies that operate across jurisdictions will be required to have understanding of each individual jurisdiction's processes for matters of national environmental significance rather than just maintaining an understanding of the Commonwealth's processes. The chair's report highlights that many submissions believe there would not be efficiency gains and cost reductions from the bill. The chair's report specifies that the largest regulatory costs for proponents are typically in the assessment phase, which is already completed in conjunction with states and territories, only typically requires an extra form to be completed and is normally completed within a few weeks.

The chair's report notes that a cost-benefit analysis, conducted by Deloitte Access Economics, from the Minerals Council submission concluded that there would be over $1 billion in net benefits to business and government over a 10-year period if bilateral agreements, along with administrative reforms, were implemented. Examination of the cost-benefit analysis uncovers that the net benefits from just the bilateral agreements is around one-third of the total claimed in the Minerals Council submission. The cost-benefit analysis undertaken by Deloitte Access Economics focused solely on net benefits to government, industry and the economy from bilateral agreements and administrative reforms and assumed that environmental outcomes would remain constant.

Finally, the chair's report notes evidence from the Department of the Environment that it conducts different analysis to that done by states and territories. However, in this evidence, it appears that the department generalises away the importance of its own specialised analysis regarding matters of national environmental significance. It is true that, under the current model, proponents are dealing with two regulators as part of the same project approval process. However, these two regulators are analysing the application on very different scales. As the department outlines, the Commonwealth department must have regard to matters of national environmental significance, while the states and territories have regard to whole-of-environment impacts within the jurisdictions' borders.

The chair's report also uses evidence from the department of potential savings for a project proponent but does not consider any increased costs to the Commonwealth and/or to the states and territories. As states and territories have no experience in approvals relating to the nine matters of national environmental significance, they will need specialists capable of regulating proposals to the national standard. Further, as the Commonwealth will retain call-in powers on all delegated approval, it will need to retain staff to complete an approval in the case of a call-in. As the purpose of those reforms is to make the approvals process more efficient, while keeping environmental outcomes constant, I am concerned that the Commonwealth will either have to keep a large number of staff with excess capacity to deal with call-in or see a large delay in project approvals. Further, I am concerned about the capacity of smaller states to approve projects relating to matters of national environmental significance at a national standard. A state regulator may only practice regulation with regard to specific matters of national environmental significance on a small number of occasions. This raises the potential for mistakes, and costs to proponents from appeals and damage to the environment.

The chair's report mentions the evidence from Environmental Justice Australia, that the bill will create further uncertainty in the approvals process. Further, Glen Klatovsky, of The Places You Love Alliance, provided evidence to the hearing that he felt that the Business Council of Australia appears to be less certain about the concept than they were in 2012, because of the potential exposure to litigation from poor processes of states and territories.

It is interesting to read the Business Council of Australia's submission to this inquiry. They really emphasise the need for Commonwealth officers to be in each of the states and territories to actually make sure that this can work. This is at a time of massive job shedding, at both federal and state levels. The Business Council of Australia's submission noted a need for close administrative cooperation between the Commonwealth and states to ensure consistency in decisions. As Mr Klatovsky summarised in his evidence, the Business Council of Australia proposed that an expansion of the Commonwealth Public Service to oversee state agencies was 'critical' to support the transition and 'remove duplication while maintaining environmental outcomes'. The Business Council did not propose a time frame for the cessation of the extra Commonwealth staffing or if some Commonwealth staff would assist more than one jurisdiction.

I was surprised by this submission, given the vast recommendations to slash the Commonwealth Public Service in the Business Council of Australia's commission of audit. I would have liked to question the Business Council of Australia on this proposal but the council refused the committee's invitation to appear at the hearing. This was despite the hearing being held in Melbourne, the location of the head offices of the Business Council of Australia.

The chair's report summarises arguments proposed in many of the submissions that bilateral approvals agreements will see a 'potential diminution' in national environmental standards. A number of submissions argued that there was therefore a need to keep national protection measures on matters of national environmental significance.

I note that the department's evidence was focussed around a range of oversight measures, including the process for the approval of the bilateral agreement, five-year reviews, unscheduled audits, a senior officers committee and a call-in power for the Commonwealth. It will be interesting to see if government senators are able to explain how the Department of the Environment will have the capacity to perform these extra functions, given the staff reduction I highlighted earlier.

I am also concerned that Minister Hunt, being responsible for approving a bilateral approvals agreement and for oversight of state government processes, has broken key election commitments on funding for the Emissions Reduction Fund, Landcare and the One Million Solar Roofs program. Minister Hunt has also approved spoil from dredging to be dumped within the Great Barrier Reef Marine Park area, and is setting up to destroy the renewable energy target.

I believe this short track record shows that Minister Hunt is incapable of standing up to his cabinet colleagues even to maintain national environmental standards, as is prescribed in the policy. The view is shared by the World Heritage Committee, who in June this year delivered a harsh verdict on the government's failure to protect the Great Barrier Reef. At its annual meeting the committee voted to keep alive their threat to list the Great Barrier Reef as being in danger. The committee also labelled the handover of federal environmental approval powers to the Queensland government as 'premature'.

The chair's report summaries concerns of a number of submissions that the states and territories do not have the capacity and are not ready to implement bilateral approval agreements and processes. The only arguments the chair's report provides against these propositions are that the draft approval bilateral agreement with New South Wales allows for the embedding of officers from the Department of Environment and that the Commonwealth relies on state government processes in the assessment phase.

As raised earlier in the dissenting report, the notion of embedding Department of Environment officers in state governments was raised in the Business Council of Australia's submission, in what has been inferred to mean that the BCA has little confidence in the capacity and readiness of states and territories. In regard to the duplication of effort, I note that there have been long-standing assessment bilateral agreements with states and territories and that this method of assessment has significant value for all parties.

The chair's report notes that a number of submissions highlighted that there are potential conflicts of interest in a state or territory government's role as a proponent of a project. The chair's report fails to include the evidence from Dr Chris McGrath that the draft approvals bilateral agreements were, before the election, not going to allow states to make decisions over projects where they were the proponent. Dr McGrath said of the Abbott government:

… the government and the current environment minister said before the election that they would be not allowing states to make decisions over projects where they were the proponent as well as a couple of other things …

Dr McGrath also stated his concerns in evidence to the hearing:

Under the Queensland approval bilateral, you are giving the decision to the state Coordinator-General, who is a public servant whose core purpose is to develop the state. It is not about protecting the environment at all.

In relation to schedule 3, part 1—amendments relating to water resources—the schedule will not remove the water trigger from matters of national environmental significance, but will allow for the minister to accredit state and territory processes to approve matters previously prohibited for approval by a state or territory government. There were a large number of arguments against the delegation of powers around the water trigger because of the cross-jurisdictional boundaries of water and the insufficient capacity or conflict of interest of state and territory governments.

The water trigger was put in place because of state and territory governments' inability to adequately deal with threats to water resources, particularly cross-jurisdictional water resources such as the Great Artesian Basin and Murray Darling Basin. Because of the very nature of the issue, the specific requirements of the water trigger are to not duplicate. The acknowledgement the water resource is of national significance and that a national approach to decision making is needed.

In relation to schedule 3 part 2—amendments relating to bilaterally accredited authorisation processes—there were a large number of people who made submissions who opposed the accreditation of state government policies and processes, primarily because these changes are not subject to public or parliamentary oversight. Ms Walmsley from the Australian Network of Environmental Defenders Offices summarised the concerns of many submissions in evidence to the hearing:

In a lot of jurisdictions, a significant amount of detail is in a policy or a guideline. If they are accredited, the Commonwealth may be able to say, 'At the point of accreditation, yes, those standards were in the guidelines.' But, without parliamentary oversight or scrutiny, guidelines can be changed at a state level, and they regularly are. Even if a standard may exist in a guideline at the time an accreditation is officially done, those guidelines may change.

Mr Bradley Tucker from the Wentworth Group of Concerned Scientists provided the committee with substantial evidence regarding the draft policies under the New South Wales and Queensland bilaterals, saying:

They are delegating approvals under bilaterals that have draft policies which give state bureaucrats discretion without having to justify their discretion. That, to me, in no way would satisfy the protection of a matter of national environmental significance!

Dr Chris McGrath described the lack of parliamentary oversight as 'a minefield' in evidence to the hearing and expanded on this point. In response, the chair's report includes an answer from the department that there must be a 'legislative hook' for a policy or process. However, the chair's report does not provide evidence that there would be legal enforcement of standards in approved state and territory policies and guidelines. Labor senators consider it inappropriate to give this level of flexibility to state and territory governments.

Schedule 5 relates to miscellaneous amendments. The miscellaneous amendments will increase the range of entities allowed to approve actions to potentially include local government or a state or territory environmental court or tribunal. Quite rightly, a number of submissions were opposed on the grounds of capacity to act in the national interest, potential conflicts of interest, and negative impacts on maintenance of strong environmental standards. The department sought to highlight that the amendment will change the focus from the identity and legal status of the decision maker to the decision maker's ability to adhere to high environmental standards. However, Mr Graham Short from the Association of Mining and Exploration Companies said to the hearing that AMEC was not supportive of this concept:

There are already some issues that have arisen by various planning processes and planning schemes and town planning schemes by local authorities that do not have an understanding of the mining industry … I am pretty sure that our membership would not support the concept of local councils or local authorities being involved in the decision-making process.

There was also strong opposition in a large number of submissions to the devolution of decision making to local government or a state or territory environmental court or tribunal.

It is clear that this bill should not pass. It fails to reduce regulation, and it fails to maintain and strengthen environmental protection. Minister Hunt needs to take his role as environment minister seriously. Prime Minister Abbott has dismally failed the Australian environment in the past year. The Prime Minister and the environment minister need to find the middle ground. They need to find a balance between development and environmental protection. At present, they are failing this nation and failing future generations.