Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Last night I was speaking about the Greens’ series of amendments, amendments (1) to (7), to the Offshore Petroleum Bill 2005. These amendments essentially incorporate an object of the bill—that object being to ensure that offshore activities relating to petroleum exploration, recovery, storage and transport are carried out in a way that is consistent with the principles of ecologically sustainable development. The amendments then go on to incorporate those principles of ecologically sustainable development into the act. The amendments also require that activities comply with the environmental plan, with penalty units for failing to do so.

Finally, the amendments also require that an operation must not continue when a new environmental risk is identified. In other words, a person carrying out a petroleum activity for which there is an approved environmental plan must not carry out the activity after the identification of any significant new environmental effect or risk, or a significant increase in an existing environmental effect or risk arising from the activity, unless a new or increased effect or risk is provided for in the environmental plan.

As I was indicating last night, the reasons for these amendments include, firstly, that there is no object to this act. Ecologically sustainable development is incorporated into the regulations which underpin the act, but there is no actual object for the act. I think it is entirely reasonable that we incorporate ecologically sustainable development as an object of the act. I would like Senator Colbeck to respond as to why a 600-page act has no object and what the government’s response is to incorporating ESD into the act.

Secondly, this legislation refers only to the resources of the sea and the seabed. I would like to ask Senator Colbeck whether, for example, whales are covered in a definition of ‘resources of the sea and the seabed’ and I would specifically like to know why there is not a broader reference to the marine environment.

Finally, the issue that is incorporated in the final amendment—that is, operations not being able to continue where a new environmental risk is identified—is a way of incorporating the precautionary principle into this act. The reason we need the precautionary principle in this act is that this act is being brought in as a single-user use. It is not in the context of regional marine planning and it is not in the context of broader use activities. Therefore, we have to have a mechanism to be able to stop these activities if later science reveals that a disaster is being caused.

We also need the precautionary principle because of the presumption of the act that all ocean and sea areas are available for offshore petroleum activities—seismic surveys, drilling, construction of installations, pipelines and so on. The presumption under this act is that everywhere offshore is available to the petroleum industry and associated industries and, as I said yesterday, that they even be given tax exemptions for going into frontier areas. So the presumption is that the whole ocean is available to the offshore petroleum industry. By having these reports every year, industry will be virtually invited to go out and explore and to get tax breaks for exploring. As I said yesterday, I would like Senator Colbeck to indicate whether companies can get 26 years worth of virtual sovereignty over a particular area and, if it is not 26, exactly how many years a company can put down its claim over a particular area of ocean. Further, we need this amendment to the act to prevent those companies seeking compensation if they are not able to proceed.

We have already had this in Tasmania, where resource security legislation was brought in to transfer a public good—the Tasmanian forests—to private corporations. Now, if the community want to save their own forests, they have to compensate the companies for not logging them. It is the most outrageous presumption in that legislation, and it is precisely the same presumption in this legislation: that the global commons—the oceans and seas—are a free good over which oil companies can be given licences or permits and tax breaks to assist them. The assumption is then that there is no way to get those back—for example, if they have an environmental plan when there is no requirement by the designated authority when assessing environmental plans to consider ecologically sustainable development.

So we have to have some way to claw this back on the basis of the future. You might say that that is not necessary, but the fact that it is necessary is demonstrated by you coming in here with legislation which is underpinned by principles 40 years old and no attempt whatsoever has been made to update the principles or assumptions of the act to take into account its context in regional marine planning. I would like some specific responses to those issues.

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Finance and Administration) Share this | Link to this | Hansard source

The first point that Senator Milne raised last night related to a requirement for an object clause. There is no legal responsibility or necessity for an object clause, but where there is one it does have an influence on the interpretation of the act and the exercise of discretionary powers under the act. For that reason, it is not possible to include an object clause that represents only one aspect of the purposes for which the act was enacted. Ecological sustainability is not the only purpose for which the Offshore Petroleum Bill 2005 is being enacted. If the proposed object were included, it would be necessary to include a number of other equally important objects that would provide a balanced representation of the purposes for which the Offshore Petroleum Bill is being enacted. It is because of that that these matters are being dealt with by way of regulations.

In relation to the times available to the industry for offshore petroleum titles, there are a range of classifications. I will go through those for you. The exploration permit provides title to an area for the purposes of exploring for petroleum. The initial term is six years, and it can be renewed for a further two terms, each of five years, for a total of 16 years. A retention lease provides title to an area covering a petroleum discovery that is considered by the government to be not currently commercial but likely to become so within the next 15 years. The initial term is five years, and that can be renewed for further terms of five years. There is no limit on the number of renewals, but at the time each renewal application is being considered the commerciality test is applied—that is, the field is not currently commercial but is likely to become commercial over the next 15 years. Then we have the production licence, which provides for the commercial extraction of petroleum. Once granted, production must commence within five years, and then the licence continues in effect indefinitely so long as the field as in production, plus a period of five years.

Prior to the release of an area, and at the time of each renewal application, there are consultations with Commonwealth and state agencies representing stakeholder interests to ascertain other rights and interests in the area. In addition, any work activities planned in a permit or a lease require specific approval, and this process also takes into account the rights and interests of others. An approved environmental plan is a prerequisite for obtaining approval to conduct any work activity. Furthermore, under the EPBC Act there is an obligation on titleholders to refer matters that are likely to affect a matter of national environmental significance.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

There were a number of other issues, which I will get back to in a minute, but what Senator Colbeck has just said confirms what I said last night. The exploration permit lasts six years, renewable for another five years and then with the option for another five after that, for a total of 16 years. There is an option for a retention lease after that, which it seems can go on with no limit to the renewals. And then there is a production licence that goes for five years and then on ad infinitum into the future. So I was probably being conservative by saying that companies can have a commercial interest in an area for up to 26 years before production occurs. If there is no limit to the number of times they can have their retention leases renewed, it will be in excess of that, and those companies will then argue property rights. So I ask Senator Colbeck: if an oil or gas company exercises these rights over a frontier resource area identified by the Department of Industry, Tourism and Resources, goes out, gets a tax break and gets a permit for that area for 26 years or longer and, in the course of those 26 years, community attitudes change or a significant new environmental effect or risk is identified that is not currently provided for in the environment plan—one or other, but let us assume the latter—what can the community do about getting that permit or lease back from the oil company?

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Finance and Administration) Share this | Link to this | Hansard source

Senator Milne missed one key point that I put on the record as part of my presentation previously, and that is that, after each five years, there has to be a process where justification for continuing occurs. Through that process, there is the capacity for dealing with new issues that have arisen during the previous five years.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Senator Colbeck needs to explain specifically what that process is in terms of new environmental risks or concerns. My understanding is that the issue that is looked at is whether it is economically viable in the current circumstances. I want to know specifically how my scenario plays out. Let us assume that an oil company gets a lease over one of these frontier areas and, in the course of that five, 10 or 16 years, a new environmental risk is identified that is not covered in the environmental plan, and that retention lease comes up for reassessment. Can the community then terminate the permit on the basis of that environmental risk without paying compensation to the oil company, which at this point has done nothing because it has not been commercially viable to do so?

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Finance and Administration) Share this | Link to this | Hansard source

As I said before, any work activities planned in a permit or lease require specific approval. At the commencement of each process there is a requirement for justification of continuation of the lease. So any work activities, as I have said a couple of times, planned in a permit or lease area require specific approval. This process also takes into account the rights and interests of others. An approved environmental plan is a prerequisite for obtaining approval to conduct any work activity.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I understand that, Senator Colbeck. What I am asking is: what is that process? You say it takes it into account. From my reading of the legislation, there is only one person involved—that is, the joint authority. There is no collaborative decision making or involvement with anyone with expertise in ecology. In fact, the designated authority alone makes a decision on a permit or licence. I want to know whether the environment department can come in and veto a further expansion of the retention licence and, if they can, what the situation is as far as compensation goes. I want a specific answer to that question.

I also want to return to the issue of the object of the bill. Senator Colbeck’s excuse for there being no object is that the object of a bill allows for the specific interpretation of the act and that, if a specific interpretation of the act is that it complies with ecologically sustainable development, you would need other objects of the act—the senator said a ‘balanced’ interpretation—other things that are equally important. There is no balance as it currently stands because the environment is not mentioned at all. So the assumptions in this bill are that oil companies are free to put in their pipelines, to drill, to mine and to put in their seismic testing and so on. There is no balanced interpretation at the moment; there is a bias towards a recognition of the commons as being freely available to the oil companies.

I would prefer that you spell out the objects of this bill and incorporate whatever other objects you have, along with the incorporation of a definition of ecologically sustainable development as being one of the objects of the bill. It is an object of the EPBC Act; it is an object of several other acts. I cannot see why it should not be an object of the Offshore Petroleum Bill.

The other matters I would like you to address are the issue of the precautionary principle and the issue, which I have already raised, of compensation. Additionally, there is the issue of whether the resources of the sea and the seabed incorporate whales, for example, and why that has not been changed to what would be a much more appropriate reference—that is, marine environment.

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Finance and Administration) Share this | Link to this | Hansard source

In relation to compensation, I think I addressed that issue yesterday, but I will repeat it now: it is a matter that is dealt with by the courts. An example would be a permit that was removed on the Great Barrier Reef and the courts deciding that there was no compensation in that case. Senator Milne, I again reject your proposition that, in relation to the sea, this is open slather. There are designated areas that are looked at, allotted and offered. It is not a matter of an oil company deciding that they want to go to a particular area. It is a matter of an offer process that the government puts up. In relation to the pre-release of acreage for consultation, there is consultation with the Department of the Environment and Heritage prior to that pre-release.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Seeing that Senator Colbeck has introduced the term this morning, I would like him to tell the chamber what he or the government understands by the term ‘ecologically sustainable’. I go back to the night before last, when I asked about the second reading speech, as I read it, referring to a change in boundaries—and I quote:

A small northward displacement of the scheduled area outer boundary north-west of Western Australia is also proposed, in line with Australia’s continental shelf claim beyond 200 nautical miles from the baseline that has been submitted to the Commission on the Limits of the Continental Shelf under the United Nations Convention on the Law of the Sea.

I asked at that time where that was and why it was being changed.

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Finance and Administration) Share this | Link to this | Hansard source

The principles of ecologically sustainable development were agreed by COAG in 1992. These principles are:

• decision making processes should effectively integrate both long and short-term economic, environmental, social and equity considerations;
• where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation
• the global dimensions of environmental impacts of actions and policies should be recognised and considered
• the need to develop a strong, growing and diversified economy, which can enhance the capacity for environmental protection should be recognised
• the need to maintain and enhance international competitiveness in an environmentally sound manner should be recognised
• cost effective and flexible policy instruments should be adopted, such as improved valuation, pricing and incentive mechanisms
• decisions and actions should provide for broad community involvement on issues that affect them

That was the definition that was accepted by COAG in 1992 and has, I understand, since been reviewed to include protection of intergenerational equity. In relation to the modifications of the boundaries in the north-west, Australia’s continental shelf submission was lodged with the UN Commission on the Limits of the Continental Shelf on 15 November 2004 under article 76 of the United Nations Convention on the Law of the Sea. This includes a claim over an area of seabed off Western Australia, near Joey Rise, as far north as the point of latitude 12 degrees, 45 minutes and 55 seconds south and longitude 113 degrees, 31 minutes and 42 seconds east. A fraction of this area falls further north than the northern boundary of Western Australia described in schedule 2 of the Petroleum (Submerged Lands) Act. Accordingly, in the equivalent area—the description in schedule 1 of the OPB—an adjustment is proposed to the trajectory of the boundary line in the vicinity of the above mentioned point to expand the scheduled area to encompass the whole seabed area claimed by Australia. I have two maps here that I am happy to provide that show the before and after boundaries referred to. I will table those for distribution.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I would like a copy of those maps. The minister has spoken about the lack of scientific certainty not being used to enable a process to proceed. This is, in fact, the heart of the precautionary principle. It then follows the argument that Senator Milne has been making, which is that there is no scientific certainty about matters such as sonar testing. In fact, there is great conjecture that sonar testing interferes with the migratory pattern of whales. It can and does damage their ability to navigate and upsets their hearing and balance system. There is emerging scientific evidence that sonar testing damages the immediate ecosystem on the sea floor, with the death of some small organisms. The closer you get to the sonar testing, the greater the damage. I ask the minister: will sonar testing be prohibited from marine protected areas under this legislation until it is shown to be safe?

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Finance and Administration) Share this | Link to this | Hansard source

Those issues would quite rightly be dealt with as part of the environmental process in the development of the environmental plans. Sonar sound dissipation varies with the type of sonar and oceanographic features and conditions. In the case of an issue that you mentioned the other night in relation to the Marion Bay stranding, the sonar used was determined by Curtin university experts to have dropped below background noise by about eight to nine kilometres from its source. Obviously, stronger sonar sources can travel further, especially in deeper ocean areas. Again, I think quite rightly, those issues are properly taken up as part of the development of the management plan that is required in each of the zones, and those issues are required to be addressed.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The problem here is that the Senate is being asked to tick off on a process of which it has no further control. We as legislators have to be very clear about this. If you are going to have ecologically sustainable processes, then you should direct that. But it is not in the legislation. Senator Milne proposed amendments that say, ‘We will put it into the object of the legislation so it is stated,’ and the government says no, and the opposition backs that. It is just a farce—and we all know it. You know it; we know it.

Sonar is meant to send soundwaves deep into the crust of the earth, both horizontally and vertically, to see whether there is oil, gas or other minerals. We are not talking about banging paper bags; we are talking about massive sound that penetrates the earth’s surface and spreads rapidly through water as well. The chances of some multinational oil company forgoing sonar testing until the scientific evidence is in about the damage we know it occasions is zero. I know that because I appealed a number of times in this chamber to a past Minister for the Environment and Heritage, Senator Hill, to stop this process where it impacts on marine national parks in Australia. I appealed to the minister to stop it until there was a study of the seabed which comes to an understanding of the impact of such massive explosions on the ecosystem. That never happened.

Here we are being asked to tick off on this happening in marine protected areas. Well, they are not marine protected areas, because they are not protected. You are asking us, the Greens, to say: ‘Oh, that’s okay. We’ll go along with this semantic deceit and have marine protected areas in Australia invaded by the corporate need for oil and gas from wherever they might be, and for other minerals coming down the line, not for ecological purposes but in the search of profitability.’ You are asking us to believe that some unknown processes with some unknown people under some guidelines which are not written into this legislation are going to protect us from corporations breaching your definition of ecologically sustainable processes. It has not happened in the past; it is not happening now; it is not going to happen in the future. The very fact that you know that—I am speaking through you, Chair—and that the Labor Party knows it as well comes from the fact that the Labor Party is going to join the Liberal and National parties in voting down this very sensible set of amendments from Senator Milne. The amendments say, ‘Let’s get the objects straight; let’s be clear about what this legislation should do, and let’s include implementing ecological sustainability in that.’

‘Oh no,’ says the government, ‘we won’t do that.’ ‘Oh no,’ says the opposition, ‘we won’t support it either.’ And the minister says, ‘We won’t do it because there are several objects to this bill.’ Well, let us have them. Let us put the several objects in; it is not the first time in history that has happened. In fact, that is usual. It is very rare to get a bill in this place that deals with only one object. But the government says, ‘No, we don’t want to say upfront that there is any environmental consideration here.’ And do you know why? Because the oil companies do not want it. This is their legislation. This is 600 pages of open go for the oil companies, and this process is riddled with deceit.

You will not find any coverage of this in tomorrow’s press, because this is the state of environmental deceit under the Howard government. Ten years on, it is at its acme. As the world gets into greater and greater environmental trouble, we get greater and greater ignorance from the government. It is studied ignorance, and it is exemplified here by the government and the opposition, for goodness sake, arguing—as best they can; there is very little argument from the opposition, which just wants to vote against it and get it over and done with—against a commonsense attempt through these Greens amendments to get some ecological probity into what the oil companies will be doing. If you are going to have a marine protected area, then protect it. But this is an absolute farce from the big parties here this morning.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I want to follow up on what Senator Brown said and respond to Senator Colbeck. Senator Colbeck actually confirmed exactly what I was saying about this legislation being resource security for the oil and gas companies. That is what it was intended to be 40 years ago and remains intended to be now, except we should know better. What he said in terms of the offer is that, when it comes to new acreage releases, there is an offer process to the oil and gas companies, which then come back and put down their claim over certain areas. That means a process has been gone through before that at government level, to identify certain areas of ocean that they want to open up as new acreage releases, including frontier areas of the sea for which they give tax breaks. The companies then come and put their stamp on it.

The point I was making is that there is no public process involved in this identification of areas that are then to be offered to the oil companies. There is no public process. Senator Colbeck said that the Department of the Environment and Heritage is consulted. My point is: does it have a veto? Does the National Oceans Office, the national ocean policy or the Department of the Environment and Heritage have a veto on opening up new areas of sea as prospective areas to be offered to the oil companies? I see nowhere in this legislation where the national ocean policy, the department or the Minister for the Environment and Heritage has any veto rights over the Department of Industry, Tourism and Resources offering areas of ocean. This is the commons. This is the global commons we are talking about, and we have got a department of industry going out and assessing that area on the basis of pro-spectivity, not on the basis of a marine-planning process and all of the values that might be considered.

I want to know if there is a veto capacity in this legislation for the department or the minister of the environment in consultation with the National Oceans Office, in the event that an area is too sensitive to sustain petroleum exploration or production, or if the environmental values are not known in the area. This is especially for the deeper areas where they are going to now. You should be able to veto that ever being offered. I want to know if the minister for the environment has that veto power. I hear the glib phrase ‘consultation with the department of the environment’. Well, the other night I heard about consultation and all the groups that had supposedly been consulted. When I spoke to some of the groups, I discovered that they were invited to a workshop 12 months ago or more, and that is about the only consultation they have had—and that was on the regulations, not on the act. So I would like the minister, if he would be so kind, to document exactly how and when he consulted with all of the groups that he proudly read out the other night as having been effectively consulted in this process.

Senator Colbeck went on to say something when I asked about compensation if we hand over areas of sea to the oil companies for, as I said, up to 26 years—which can occur in that process. If they are offered that, they get resource security over the global commons for a long time. Then, if we identify environmental risk that is not covered in their environment plan and we want our ocean back—the same way the people of Tasmania want back their forests, which were handed over to the forestry companies—for a marine-planning process or for protection, do we have to compensate the companies? And Senator Colbeck said, ‘Oh, well, it is a court process.’

Why should the Australian community have to go to court to argue compensation matters with oil companies to get our own ocean back? That is what I want to know, and I want to know who pays the court costs. Presumably the Commonwealth, or the Great Barrier Reef Marine Park Authority through the Commonwealth, had to go to court because the oil companies were seeking compensation for not being able to drill on the Great Barrier Reef. That is my point precisely here: this legislation is entrenching the very process that got us into such a mess on the Great Barrier Reef. When cultural and community attitudes moved to the point where they wanted to protect the reef from oil exploration and drilling, the company said: ‘No. We’ve got a permit. We’ve got a right to it. We want compensation. Take us to court.’ You have gone to court. Who paid the court costs? Were they awarded against the companies in the Great Barrier Reef court case? Why should we be entrenching a process that sets up the community having to go to court to get compensation? I would like an answer to that question.

I would also like an answer to the question that I asked before—and I am not going to stop until I get an answer—and that is: are whales regarded as a resource of the sea and seabed in the absence of a definition or the inclusion of the broader concept of marine environment? Why does this legislation persist with a definition of ‘resources of the sea and seabed’ and why have you not incorporated the broader definition of ‘marine environment’ in this legislation?

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Finance and Administration) Share this | Link to this | Hansard source

DEH can effectively veto a proposed area, and this has happened in the past. I did not claim that the environment movements were consulted on the bill. I laid down that they were consulted on the regulations. The reason they were consulted on the regulations is that that is where issues relating to the environment are raised. In relation to whales, as we have discussed before, protocols are in place to deal with cetaceans. Guidelines have been developed and are being reviewed in relation to dealing with that. I understand, from the comments that you made the other night, that you are not satisfied with where they are at at the moment, but a process is going on and, as I said the other evening, there will be a meeting again in the next couple of weeks. I think that essentially deals with those three particular issues.

John Watson (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator Colbeck, for the purpose of the people listening to this debate, when you refer to DEH could you refer to the department as such, as that would enable those listening to this broadcast to more fully comprehend what is going on.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Could Senator Colbeck explain beyond the distances he was giving what his understanding of the impact of massive sound explosions on the auditory system of whales is and how that impact affects their ability to navigate in the oceans.

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Finance and Administration) Share this | Link to this | Hansard source

The reading I have done indicates that there is a range of impacts, depending on the type of seismic activity or the type of sonar being used. Continuing research is being undertaken to understand that better. I do not accept your definition that all activities have a severe impact particularly on cetaceans. The reading that I have done indicates that it depends significantly on the type of activity that is being undertaken and a range of other things, including proximity and the type of technology that is being used.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The question that I asked the minister was: how does this impact on whales? What is it that happens in the recipient creatures that impacts on their ability to either hear or navigate in the ocean? What is the minister’s understanding of that?

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Finance and Administration) Share this | Link to this | Hansard source

As I said, my understanding of the situation is that the jury is still out on that. I do not claim to put anything on the record. I have seen several papers that indicate a range of things. I know in one circumstance the United States navy claimed responsibility for a particular incident, and in other circumstances the evidence is that the whales simply avoid the areas where the noise is being made. My understanding is that research is still being conducted on that and the jury is still out.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

And then there is the circumstance of the Spanish navy, which had whales with blood coming from their ears wash up in the Canary Islands immediately after impact. The point here that I want to demonstrate is that the minister said earlier that ecological sustainability depends on, amongst other things, a lack of scientific certainty not being used to allow a process to go ahead. The point that the minister has amply demonstrated is that there is a lack of scientific certainty here. Scientists simply do not know at this stage, so we should not proceed. But this legislation, as Senator Milne said, does not even mention cetaceans. It does not even mention oceans. It is certainly not about protecting the creatures that move through the oceans. When it comes to marine protected areas, it is all about allowing the invasion of the seabed, upon which the rest of the food chain in the oceans depend. So this is just a farce. The term ‘ecological sustainability’—and the minister read out the principles of it—which was defined at the Earth Summit in Rio in 1992, and since then the added principle of intergenerational equity are simply being steamrolled here. They are simply being put into the mud, as if they do not matter.

There is no point in continuing the debate here. The Labor Party is going to support the government on this. But it is a very sad indictment. There is a studied ignorance and a determination to turn the back on the fragile living ecosystems on this planet—and two-thirds of them are in the oceans—to the loss of coming generations. This is a studied insult to the concept of intergenerational equity by this government, backed by this opposition. It is the job of the Greens to continue to point that out until we get sanity, probity and decency back into debates like this so that the term ‘ecological sustainability’ is treated with integrity and honour instead of simply being used as a window-dressing opportunity and dropped from legislation. Senator Milne’s motion simply says: let us put it into the object of the legislation. Seeing that that is what this nation has agreed to internationally, let us put it into the object of this legislation. The government is saying, ‘No, we won’t,’ and the opposition is saying, ‘Ditto, we won’t either,’ because they know that they dishonour any such concept.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Just to follow up on what Senator Colbeck and Senator Brown have just said, the issue of whales is critically important. The definitions in this bill say that the reference to the ‘conservation’ only refers to the ‘resources of the sea and seabed’. It was written 40 years ago in the context of the oil mining and exploration industry. I want to know if ‘resources of the sea and seabed’ include cetaceans and other creatures that move through the environment. I asked why you have ‘resources of the sea and seabed’ and not the broader definition of ‘marine environment’. This would encapsulate everything in the marine environment, not just the sea and seabed, which are very specific terms relating to the interests of the oil and gas industry.

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Finance and Administration) Share this | Link to this | Hansard source

As I have said repeatedly in this debate, the issues relating to the environment and how they are managed are dealt with through the regulations and the EPBC Act. That is where those issues are managed and dealt with, quite rightly, as per the design of the legislation.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

As I have indicated to Senator Colbeck several times in this debate, the EPBC Act is not worth the paper it is written on, because it relies entirely on the discretion of the minister. Senator Colbeck would know as well as I do that it requires that the oil companies refer a matter to the minister under the EPBC Act. The minister then decides whether it is a controlled action that he or she needs to consider. Then, if it is a controlled action, the minister decides the action that needs to be taken. On every single occasion the position of the developer has been upheld, with the one exception where the courts intervened in Queensland on the bats case in relation to the wet tropics. On every other occasion the developers have won out. So please do not cite the EPBC Act as some sort of guarantee for the marine environment, because it has not been to date and it certainly will not be under this legislation.

Also, I understood you to say a moment ago—and I want clarity on this—that the Department of the Environment and Heritage virtually has a veto. I want to know whether, in this legislation, it is specifically stated anywhere that the Minister for the Environment and Heritage, the Department of the Environment and Heritage, the National Oceans Office or the minister responsible for the National Oceans Office has a veto. Is it specifically stated anywhere that they have a veto over the release of new acreage?

John Watson (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator Milne, I did refer earlier to avoiding speaking in acronyms for the benefit of the listening audience. Would you mind taking note of those guidelines. Thank you.

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Finance and Administration) Share this | Link to this | Hansard source

As we have discussed quite often during this debate, it is not specifically dealt with in this legislation because it is not part of the design of this legislation. The issues relating to the management of the environment are dealt with under other legislative processes which the industry is required to comply with—particularly the regulations. Also, there is a capacity within the legislation for conditions to be applied to designated lease areas. So there are a number of mechanisms under which those issues can be dealt with. I think it is probably quite pertinent to put on the record the excellent record of the oil and gas exploration and mining industries in this country in relation to their practices. I think that needs to be taken into account as part of this debate, because they do have an excellent record.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I think that gives us quite a clear indication of what the object of the bill is. I think Senator Colbeck summed that up fairly well just a moment ago in his statement about the performance of the oil and gas industry. I note just for the record that some Australian companies do not perform brilliantly either here in Australia or around the world. I would cite particularly Woodside off Mauritania. I intend to bring that up on several more occasions. It may interest the Australian public to know that, whilst Woodside is prepared to have double-hulled tankers on the Enfield site off Western Australia, for Mauritania they went and got one of the ships that is on Greenpeace’s list of ships of shame—a single-hulled ship—because Mauritania is a poor country and they can negotiate with it in a manner that is unacceptable. There is a current scandal in Mauritania regarding the minister for energy and its dealings with Woodside. I think there is going to be much more about that as we come down the line while you talk up the performance of Australian oil and gas explorers.

Let us get back to this particular legislation. What we have now established is that the Department of the Environment and Heritage and the Minister for the Environment and Heritage do not have a veto over new acreage. It is as simple as that. It is as I stated. What we are effectively doing with this legislation is giving resource security to the oil and gas companies when they apply for areas offered by the government without the department of the environment or the minister having the capacity to veto.

That is why my amendment to incorporate the precautionary principle is important. Unless we have the precautionary principle, it is highly likely that in the next few years, with desperation about global oil supplies and trying to find new ones, we will see oil companies and governments moving rapidly to give companies with tax breaks permits over huge new frontier areas of ocean. If that occurs, we might later discover that those areas are critical marine environments. As I said before, we do not know very much about the marine environment. At this point, we simply do not know, and the Department of the Environment and Heritage would not have assessed or know enough about, the deep sea ocean in particular. We are learning more about it all the time as they discover new deep sea creatures and so on.

What is being set up here is no capacity to veto those areas by the minister and, once the areas are given, no capacity to get them back without compensating the oil companies for, as I said, the global commons. Those companies do not own the oceans. The government are setting up a scenario which allows companies to hold a permit for in excess of a quarter of a century. Look at how science and technology moves in a quarter of a century. The government are giving them, this year, the rights over large areas of sea and, if we want them back, we are going to have to go to the courts. In the case of the Great Barrier Reef there is, fortunately, a precedent where the courts found that compensation was not payable. But do not underestimate the oil companies’ capacity to tie up the Commonwealth in knots over a long period of time if we want to get those areas back. Why not put into the legislation now an amendment which says very clearly that a person carrying out a petroleum activity for which there is an approved environment plan must not carry out the activity after the identification of any significant new environmental effect or risk, or a significant increase in an existing environmental effect or risk, arising from the activity?

It is very likely, as my colleague Senator Brown pointed out a moment ago, that, as we have increased research on the impact of sonar and seismic testing on cetaceans, we will get to the point where we know full well that it is impossible to conduct those operations without impacting on a marine species. We will then be at the point of having to make a decision about which, the oil industry or cetaceans, will take precedence. That is the kind of conundrum that we are setting up in this legislation, and it is being set up because the legislation has been brought in as a single-use piece of legislation in the absence of a context of regional marine planning.

I am glad that a moment ago Senator Colbeck acknowledged that the Department of the Environment and Heritage seismic steering committee, which is dealing with the EPBC seismic cetacean guidelines, is continuing to work on those guidelines. They are hopelessly out of date and they have been for a long time. Every time there is a whale stranding we are told that they are working on new guidelines that will be implemented soon. Today we have yet again been told that the new guidelines are being worked on and drafted and so on. I would like to know from the minister when we are going to have those new guidelines from the seismic steering committee of the Department of the Environment and Heritage. As every year goes by and more whale strandings occur we are told that the guidelines are coming, so I would like to know exactly when we are going to get them.

But that does not alter the point that, if we get evidence that demonstrates that the increasing noise in the oceans is impacting adversely on cetaceans to the point where it should not occur, we are not going to be in a position to be able to get back those areas of ocean that we have handed over to the oil companies. Those companies can now go in to those areas speculatively, because they are to be given tax breaks to do so. Once the new frontier areas are identified the offer process happens and the oil companies come in and stake their claims. It is a no-loss situation to them, because they do not have to do anything until it is commercially viable. The companies determine when it is commercially viable and they can hold lease areas for long periods of time, keeping them retained. In the meantime, the community will always be on the back foot trying to get them back.

This would have all been avoided if we had increased the momentum in government on the marine regional planning process. We could have brought in legislation to cover the activities of the petroleum industry in the context of regional marine planning over fisheries, tourism and ecological considerations in terms of protected areas and issues pertaining to the petroleum industry. It could have all been dealt with in that context. Instead, we are putting down a marker for the petroleum industry. We are reinforcing the notion of resource security for the petroleum industry, which they, of course, applaud and want. We are reinforcing that at the expense of the environment.

I concur with Senator Brown: if the government would like to have other objects of this legislation, apart from that which I am proposing, then please bring them forward. It is quite clear from the government’s comments that facilitating the oil industry is part of the object of this legislation. That is fine. But, while they are doing that, I want the object of this legislation to require them to adhere to the principles of ecologically sustainable development, as set out in the regulations. That would require the joint authority, when making decisions about issuing permits and assessing the environmental plans, to have to consider ecologically sustainable development, which they do not have to do now. I think it is eminently sensible to put that in as an object of the act and to bring in the precautionary principle, so that the community does not have to take oil companies to court to get back the global commons. The science demonstrates what those of us who read about the marine environment now understand, which is that the marine environment is seriously under threat. With climate change we have high levels of acidification in the Southern Ocean and we are watching the collapse of fish stocks and so on. We have serious issues with the marine environment but, unfortunately, whereas the world can see the terrestrial environment, they do not see what is happening under the sea. They do not understand just what a threat the global oceans are currently under.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

The question now is that Greens amendments (1) to (7) on sheet 4708, as moved by Senator Milne, be agreed to.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

The question is that the bills stand as printed.

Question agreed to.

Bills agreed to.

Bills reported without amendment; report adopted.