Anne McEwen (SA, Australian Labor Party) Share this | Link to this | Hansard source

I present the first report of the Senate Standing Committee on Environment, Communications and the Arts on the operation of the Environment, Protection and Biodiversity Conservation Act 1999, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

by leave—I move:

That the Senate take note of the report.

I would like to take a few minutes to make some comments on this important report. At the outset, I would like to thank all of the submitters to the inquiry that led to this report, as well as the secretariat for their assistance and the other senators who participated in this inquiry. It is a substantial report, as befits a very important piece of the nation’s legislation. The Environment Protection and Biodiversity Conservation Act was passed by this parliament in June 1999 and came into effect the following year. Significant amendments were made to the act in 2006. The objectives of the act are broadly to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance, and in so doing to promote and conserve Australia’s biodiversity and heritage and to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources.

The act, which has been in operation for nearly a decade, from time to time excites a lot of interest in Australia, particularly when a decision is made under the act that is deemed to be incorrect by either the proponents or the opponents of a particular action that has been considered under the act. Of course Australia has a history of environmental activism and protest. The tensions between what are loosely called ‘development’ and ‘protection’ of the environment erupt from time to time. Those tensions are often deeply felt, and that was apparent in this inquiry and in a number of the 113 submissions made to the inquiry. It would be fair to say that any legislation that instructs decision making about environmental issues in Australia is going to attract attention, and I have to say that that is a good thing. It was a welcome reference by the Senate and has enabled us to investigate the operation of this act over the last 10 years.

The EPBC Act itself includes a provision for an independent review to be undertaken into the operation of the act and the extent to which the objectives of the act have been achieved. That independent review has been commissioned by the Minister for the Environment, Heritage and the Arts, Mr Garrett, and is currently underway. It is due to report by 31 October 2009, so many persons and organisations have made submissions to both that independent review and the Senate committee inquiry that led to this report. I do note that the committee notes in the report that the minister has requested Dr Allan Hawke, who is the head of the independent review of the EPBC Act, to take the findings in this report into account in the deliberations of the independent review. That is a very welcome initiative from the minister.

While there are a number of recommendations in this report, the committee does note that the very wide and varying terms of reference did make it difficult for the committee to focus on key issues because so many issues were raised by submitters. Some of the terms of reference probably did not receive sufficient attention from submitters for the committee to make any recommendations of note. However, there were a number of persistent themes throughout the inquiry, which I will briefly address. These include the operation of regional forest agreements. The committee felt that the amount of evidence on this issue warranted a separate report, and that will be presented on 24 April 2009.

Another persistent theme was that the act should clearly state that its purpose is to protect the environment and to protect and conserve Australia’s heritage rather than just to provide for that protection and conservation—a point made by a number of submitters. The committee has made a recommendation with regard to altering the wording of the objects of the act to delete the words ‘provide for’ so that it is quite clear that the act should actually protect the environment. Since the inception of the act, certainly in more recent years, there has been considerable debate about whether additional triggers are needed in the act, particularly triggers in relation to climate change and also to land clearing. The committee has made recommendations in this regard, the first of them to do with climate change. It notes that the government should consider the appropriateness of a climate change trigger but in the context of the government’s overall response to climate change and, in particular, to the Carbon Pollution Reduction Scheme.

Madam Acting Deputy President, you could have the best act in the world but if the resources to implement it and to follow up its operation are insufficient then there is not much point in having the legislation. So the committee has made strong recommendations that the government give urgent consideration to increasing the amount of resources available to the department in the areas of assessment, monitoring, complaint investigation, compliance, auditing projects approved under part 3 of the act and enforcement action. Importantly, too, the committee has recommended that the department be resourced adequately to undertake regular evaluation of the long-term environmental outcomes of decisions made under the act and that the government ensure there are agency resources to undertake that new and much-needed activity. The reason for that recommendation is that the committee was aware that decisions made under the act can have a long-term impact on Australia’s environment, conservation and heritage, and we need to be mindful of that.

Also addressed in the report is the interaction between this act and the Fisheries Management Act, and there is a recommendation for a review of how the two interact. Another persistent theme was the effectiveness of bilateral agreements with the states. The committee has recommended that there should be an evaluation of those agreements. Considerable evidence was given during the committee inquiry as to whether or not people believed that that arrangement with the states is delivering what it is expected to. There are further recommendations dealing with processes of the act and accountability mechanisms, including the process of nomination and listing of threatened species or ecological communities and whether or not that could be done in a way that improves its transparency, rigour and timeliness. Another recommendation deals with the use of ‘offsets’. It makes a strong statement that government policy regarding the use of offsets for habitat conservation should clearly state that offsets must only be a last resort and must deliver a net environmental gain. The report also addresses the issue of ministerial decisions under the act and recommends that the government consider expanding the scope for merits review of particular aspects of the act.

I know other senators want to speak on the report, and there are additional comments and perhaps a dissenting report. I think the inquiry and subsequent report is a good first step in ensuring that the parliament continues to take particular account of this very important piece of legislation. I commend the report to the Senate.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The Greens were in fact the body that suggested the reference of the Environment Protection and Biodiversity Act to the Senate Standing Committee on Environment, Communications and the Arts for inquiry because the act is a very important piece of legislation that was highly controversial at the time it was introduced and there has been a great deal of criticism about its effectiveness. We thought it was appropriate that the Senate review the legislation, and the Greens have submitted additional comments as part of this committee’s report. The Greens believe that the majority report covered a wide range of issues and we do not disagree with the comments the report made, but we felt there were additional issues that needed to be addressed.

The Environment Protection and Biodiversity Act was originally intended to be Australia’s key piece of environmental legislation, and it should be. Part of what it does is enact our commitments under the Convention on Biological Diversity to achieve by 2010 a significant reduction in the current rate of biodiversity loss. Unfortunately, it is clear from both the submissions and the oral evidence to the inquiry and the fact that our biodiversity continues to be in serious decline in many parts of Australia, as the State of the environment report clearly states, that the act is not achieving its objective.

Native vegetation continues to be cleared at a very alarming rate. Australia has the highest rate of mammalian species extinction on the planet. We are one of the 12 megadiverse areas on the planet and the only developed megadiverse area, therefore we have a special responsibility. As we have debated in this place many times, there is very deep concern about interception and overextraction of surface water and groundwater, evidenced by the creation of an environmental, economic and social disaster in the Murray-Darling Basin. And we are still unable to effectively tackle invasive plants and species—for example, cane toads are crossing the border into my state of Western Australia and we are having very great difficulty keeping them out. So we still have many environmental problems in Australia that, quite clearly, this act has not been able to deal with.

One of the issues Senator McEwen identified was that the act falls down even in its object: it says only that it is to provide for protection, when the object should be protection. It is absolutely essential that the government addresses that when it reviews this legislation and, hopefully, brings in substantive amendments. Another key issue that came up in the inquiry is the piecemeal approach the act takes to environmental protection. It cannot take a holistic approach on a national level to matters of national environmental significance because other aspects of the act mean that it takes a part approach. It cannot look at cumulative effects. It cannot look at the overall impact of proposals. Therefore, not only is the list of matters of national environmental significance not comprehensive enough—and I will come to that in a minute—but it cannot even give protection on the issues that are there already, such as World Heritage values, our national heritage and our Ramsar wetlands, and when species finally make it onto the endangered species list it is unable to look after those issues properly either.

Funding issues came up when this act was implemented. The point was made very strongly that there had not been enough money put into the implementation of the act. It was only, in fact, very recently that the government put more funding in. I am not knocking them for putting more funding in, but it only occurred very recently and only enabled sufficient monitoring of the conditions that have been put on projects that have been assessed.

I received just today a letter that talks about the lack of funding for critical elements of the albatross and petrel recovery plans and the long-line fishing threat abatement plan. While these plans have now been revised, this letter—which is a copy of a letter that was sent to the minister—talks about the very deep concern that Humane Society International has about the lack of funding for albatross and petrel conservation in Australia. It particularly points out the absurdity of a situation in which the federal government has in fact invested in funding for pest eradication on Macquarie Island but is not funding a key part of the threat abatement plan, which is monitoring the colonies of albatross to see if the plan is having an impact or the eradication of the pest species is having an impact. All that is needed is $60,000 to implement that component of the plan, and yet that is not being funded. That is a classic example of what has been raised with the committee in terms of the lack of appropriate funding.

One very significant issue that was raised with the committee in a submission, and which we raised in our additional comments, is the fact that climate change is not a matter of national environmental significance. The Greens support the recommendation of the majority of the committee that it be considered. The Greens, in our additional comments, recommend that it should be a national trigger. It is essential that that, along with water, is added. Other issues are land clearing and migratory fish. We colloquially call them ‘triggers’. That means that they trigger the Commonwealth assessment process. We believe that another matter of national environmental significance should be vulnerable ecological communities.

In terms of climate change, not only do we think that it should be a trigger but we think that in the longer term there is a need for a significant shift in the development of our environmental protection legislation. We think that the current framework should be improved. We have made a number of recommendations about how we think it should be improved. That will deal with the most immediate issues, but we also believe that we need to take a more holistic approach to this and have a fundamental rethink about the way we are protecting and providing for our environment in the future under a scenario of climate change. Climate change is going to have profound effects on our environment. We have to rethink our national plan and the way that we manage our national parks and our conservation estate. We need to be planning for resilience. At the moment, that is not built into our planning for the conservation estate. We think that that is absolutely essential. We will continue to pursue those issues to do with a paradigm shift. In her submission, Dr Marg Blakers calls it a paradigm shift. We agree with that; we think that that is needed.

Other areas that we have concerns about are, for example, the broad ministerial discretion that is allowed under the act and the exemptions that have been offered under the matters of national environmental significance. The issue that will come up in our second report is the issue of regional forest agreements. That is a highly controversial issue. The Greens do not believe that there should be that exemption under this act. That will be addressed in a subsequent report. I do not want anyone thinking, from reading our first report, that that issue is not going to be dealt with; it will be dealt with. That is a huge issue that needs to be considered. People will be aware that the Greens have been concerned about this issue for a significant period of time. We will address that in the subsequent report.

There is a wide range of issues identified both in the majority report and in the Greens additional report that we urge the government to take on board in the review. The review will be absolutely critical in directing the future of our Environmental Protection and Biodiversity Conservation Act and determining whether Australia gets right protecting and conserving what we have left—bearing in mind that we have done a lot of damage to our environment. It is essential that we get it right. The previous government got it wrong—it is not good English, but they got it further wrong; they made it worse—when they made those amendments in 2006. Those amendments need to be corrected. But significant improvements to the act also need to be made in order for us to protect our very fragile natural environment.

Simon Birmingham (SA, Liberal Party) Share this | Link to this | Hansard source

It is a pleasure to rise to join this debate to take note of the Senate Standing Committee on Environment, Communications and the Arts report into the operation of the Environment Protection and Biodiversity Conservation Act 1999. Like Senator Siewert, I acknowledge that this is the first report under this inquiry. There will be a subsequent report into the regional forest agreements and their impact on and interrelationship with the EPBC Act.

I note as well that some aspects of this report will probably duplicate some of the arguments that will occur there, particularly some of those that stem from the objects of the act—such as how those objects have been interpreted by the courts—that both Senator McEwen and Senator Siewert have spoken of. The coalition looks forward to the deliberation of the committee on that matter and to further exploring those issues and indeed the overall issue of the interrelationship between those two important acts. We do so with the caveat that we believe that in all of these areas of environmental management—be they forestry, fisheries or elsewhere—we should, as far as is possible, strive to ensure that there is a single framework in place for management, reporting and accountability. These industries should not be burdened by multiple reporting regimes under Commonwealth legislation that could impose undue costs on them.

This act was landmark legislation in its time. It is legislation that the coalition is very proud of. We know that it is not necessarily perfect; it was not perfect when it was first introduced and it is not necessarily perfect today. That is often the case with landmark legislation. I put on the record credit to one of my predecessors in this place, the great former South Australian Senator Robert Hill, who was the environment minister that shepherded this legislation through and, in doing so, heralded a new era of environmental management by the Commonwealth. Like many of these areas, it comes under intense criticism. That intense criticism should not be misinterpreted as saying that it is all wrong, because, of course, you cannot please all of the people all of the time; in fact, in many instances, you cannot please all of the people any of the time. That, of course, is because in many of the instances considered under this act there are extreme positions and often everybody is disappointed by parts of the outcome.

But, as I said, this act is worthy of continuing review and improvement, because it is a critical area. This type of environment protection in our law is now a critical area of Commonwealth responsibility. We on this side of the chamber are pleased that the former government stepped up to the plate in that regard and we look forward to working constructively with all parties in the chamber to seek further improvements going ahead. We note that the act contains a mandatory statutory review which has been initiated during the conduct of this inquiry. The Minister for the Environment, Heritage and the Arts, Peter Garrett, has initiated that, and that review will report late next year. I hope that that statutory review—the independent review—that is being undertaken into the operation of the act will be able to look much more closely at the details in terms of the scope, implementation and operation of this act than necessarily our inquiry has been able to do.

As Senator McEwen acknowledged, there was enormous interest, and I thank all of those parties who displayed interest in this inquiry. Not all issues have been able to be adequately covered in the time available. Indeed, I hope the independent review will be able to look at the detail of the legislation far more closely than we have been able to to address some of those concerns that exist, both from, shall I say, the environment lobby on the one hand and those industry groups, business organisations and others, on the other hand, who all have differing concerns about the operation of this act. Nonetheless, the coalition provided additional comments which indicate where we support the majority report recommendations and where we have concerns. I welcome those areas that particularly touch on resourcing. There is no point in having an act that requires conditions to be adhered to in many instances if you do not have appropriate policing of it and enforcement of it. Now, making sure that there was appropriate policing and enforcement is an area that we probably erred in when in government; these were the early days of the operation of the act, and, unsurprisingly, most of the resources and effort probably went into those initial assessments and initial considerations under the act. But it is important that we continue to beef up all aspects, from that assessment process right through to compliance and enforcement. It is especially important.

We have canvassed in this committee—I have particularly done so in estimates with Senator Wong and others—issues such as the north-south pipeline in Victoria, for which Minister Garrett has provided a conditional approval. That conditional approval relates to a range of factors, including water savings. I, for one, will be going into those estimates committees time and time again to make sure those water savings have been met. I expect that the government will in this area, as with other conditional approvals, be ensuring that the appropriate enforcement is in place.

We encourage especially the independent review but also the government overall to look at the full use of powers. Something that I think has come through in this inquiry is that there are a range of areas and mechanisms that already exist under the act that probably are not being employed sufficiently or appropriately—areas such as strategic impact assessments, the listing of threatened species and the preparation of recovery plans. It is not all about simply assessing individual projects on a case-by-case basis. So we would encourage the independent review and the government to look at that full spectrum of powers that exists. We do so, really encouraging the government to try to make the act, as far as possible, work to meet its current objectives. Let us get this act working now with the broad scope it already has before we necessarily branch out and seek to include further scope.

I also welcome and encourage looking at the impact of bilateral arrangements with state governments in terms of the assessment of projects. I have concerns, again in my home state of South Australia, that we have an instance at present where numerous applications, such as the building of the Wellington Weir and the admitting of salt water into Lake Alexandrina and Lake Albert, have been applied for by the South Australian government and yet the South Australian government is also conducting the environmental impact statement on those applications by themselves. It is a poacher turned gamekeeper type situation and whether it has appropriate oversight is something that we need to look at.

There is one area of major concern that I have, and that relates to triggers. The government and the Greens have spoken about adding greenhouse gas emissions as a new trigger. Well, we have serious concerns about the impact of that. We believe that it would be very inappropriate to add greenhouse gas emissions as a trigger under this act, because it would be simply a case of asking the minister to consider in total isolation from many other things the impact of emissions in one area from one project. That really is not the way Australia should be going about managing its greenhouse gas emissions. At that project conceptualisation stage, that stage when those putting projects on the table are looking at the approvals they need, they are considering where they are going to base their project—whether they are going to base it in South Australia, New South Wales or Western Australia or whether they are going to base it in Australia, New Zealand, China or India.

The real risk that we face by putting a greenhouse gas emissions trigger in this act is that it will drive those types of projects offshore and that will be another impediment. I support reducing greenhouse gas emissions as rapidly as we possibly can. The coalition supports that, and we have announced many policies of our own in this regard. However, we need to be careful that we do not drive a situation where we simply encourage further carbon leakage from Australia to offshore. By implementing a greenhouse gas trigger in this act we would seriously risk driving those businesses and jobs offshore before they have even had a chance to lodge an application in Australia, because they would probably be too scared of the process that lay ahead of them.

We need to consider greenhouse gas emissions on a holistic level, not on an isolated, case-by-case, project-by-project basis. That is an area in which we urge the government to proceed very cautiously. We do not believe it should occur. I hope that there will be much greater exploration of this. I believe it would be inconsistent with their plans for the CPRS. I believe it would be inconsistent with the belief that we should be managing our greenhouse gas emissions on a far broader scale. In closing, I thank the secretariat and all those who participated in this inquiry, and I look forward to further contributions in the second stage.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.