Fiona Nash (NSW, National Party, Shadow Parliamentary Secretary for Regional Education) Share this | Link to this | Hansard source

I was actually in the middle of asking some questions of the minister and I think the minister may be placed in a rather invidious position with the continuation of this questioning. Following on from his previous answer that was indeed an entire load of gobbledegook and the fact that he could use common sense and apples for apples as criteria to determine whether or not a project was going to pass the common practice test was quite an extraordinary thing for me to have to take back to my constituency and explain to them that the minister thought they were fine criteria. Given that the minister is not here, I certainly do not expect you, Minister Evans, to answer that question, given the complex nature of the question that I asked and the legislation itself.

Could I perhaps just ask at this stage—and I understand time constraints and other pressing matters—is the minister intending to return to deal with this? Is he on his way or is he not going to be with us for some time?

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

Can I first of all indicate that I am deeply offended that there is some presumption by the senator that I am not on top of all the detail of this bill and not competent to handle all the intricacies. I am sure she is confident that I can do a good line in gobbledegook to continue the form of my counterpart. At least on that, we will probably be happy. I understand Senator Ludwig is unable to be in the chamber for the next period, so I apologise on his behalf and I have been asked to have carriage of the bill. Obviously, there are advisers in the box and I will do my best with their assistance to help deal with the queries you have.

Fiona Nash (NSW, National Party, Shadow Parliamentary Secretary for Regional Education) Share this | Link to this | Hansard source

Thanks, Minister, and I do appreciate your candour. I certainly would not expect that in ordinary circumstances there would be any gobbledegook coming from you. Quite seriously, I need an answer to this question further, and the advisers may be able to help here. I understand earlier as the chamber would recall that when we were talking about practices that are going to be defined as common practice, the minister referred to the chamber his view that it would be common sense. Unfortunately, it is not good enough to just say that common sense is going to be the criteria for whether or not it is a common practice that is being put forward by any of these proponents. I think, Minister, even you may well agree that that is nowhere near the detail that we need here in this chamber to be able to make a determination about the appropriateness of this legislation. It is simply not good enough.

This goes back to the comments I made in my second reading speech yesterday that the very reason that we are not in a position in this chamber to deal with this piece of legislation is because we simply do not have the detail. I think, colleagues, that it would be now seen by all that the answer the minister gave us simply highlighted the fact that we just do not have that detail.

Perhaps in the particular instance I was referring to before about fertiliser use and whether or not that would be common practice, the minister suggested, if I recall correctly, to perhaps do a survey and determine whether the use of fertiliser was indeed common practice. That particular course of action is obviously going to entail significant cost. For these parties, proponents or whoever is going to do the work that the minister has suggested, the funding is going to have to come from somewhere.

What sort of work, what sort of certainty, can the proponents have—or at least any understanding—of where they should be headed if the minister says that the criterion is going to be common sense? Whose common sense? The department's common sense? His common sense? Somebody else's common sense? It is simply not good enough because there is obviously going to be a real investment with this type of work. There is going to be a huge investment from proponents to bowl up these proposals to the department, and I think they deserve rather more certainty than is currently being offered to them. It is a nebulous no-man's land at the moment for any proponent that is looking to—and I understand there are many other areas; I am specifically talking about the carbon sequestration area at the moment. It is just a vacuum in terms of trying to figure it out.

Along the way, the government and department have said that they will look at the methodologies given to them by the proponents. How is a proponent going to know that the methodology that they are going to throw up is even going to be acceptable? It is a bit like cart before the horse. The minister noted in his second reading speech that there are methodologies available, and I know there are but none that relate to the sequestration of carbon in soil. So we simply have no idea of what methodologies are going to be acceptable—I see Senator Xenophon has gone to assist the minister!

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

That would be a first!

Fiona Nash (NSW, National Party, Shadow Parliamentary Secretary for Regional Education) Share this | Link to this | Hansard source

I doubt that seriously! I ask the minister if he has anything further to add to the previous contribution of Minister Ludwig that common sense was going to be the determining factor around the criteria for common practice.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

I thank Senator Nash for the questions. I will help her to the extent I can based on the advice I have been given. There was this debate about common practice, but, as I understand it, common practice will be identified by a process which will see the government release guidelines. As I understand it, that process will involve stakeholder consultation. That will reflect the fact that what is common practice will be different industry to industry and region to region—that is recognised. So there is not a sense of a national common practice but common practice which reflects what occurs in that industry in that region, noting that the regions have different characteristics. As I understand it, it would be a question of a stakeholder process which would then be verified, if you like, but what I am told is called DOIC—the Domestic Offsets Integrity Committee, fondly known as DOIC—which will have expert and scientific input. Then the government will issue guidelines for interested parties.

I think part of your concern, Senator, was about a national common practice and how we work out what the common practice is. It is very much envisaged to be a process that reflects the different industries and regions and also reflects input from stakeholders about what that practice is, and it will then be verified by DOIC. It is designed to be able to identify common practice with enough specificity to reflect regions and industry. The process will seek to identify that by consultation with stakeholders, with verification from those with expertise and a scientific background. As I understand it, that is how we will get to a guideline which establishes common practice.

Fiona Nash (NSW, National Party, Shadow Parliamentary Secretary for Regional Education) Share this | Link to this | Hansard source

I do appreciate the answer, and I take on board all that you said about stakeholder consultation and working through the guidelines as to what will be appropriate to make a determination about common practice. However, given the legislation is before us today, it certainly seems that it would be—to use Minister Ludwig's phrase—common sense to have actually gone through that process to determine the criteria and the guidelines before we got to the point of having to decide whether or not the legislation should be supported.

I take on board the advice you have just given about what the process is going to be—that all sounds fair and valid and fine. It is just unfortunate that that process is happening at entirely the wrong time. That process should be happening before the legislation comes to the Senate and we should have the regulations now to deter­mine, in conjunction with the legislation, whether this is appropriate legislation.

We have advice from the minister tonight saying, 'This is what the process is going to be to come up with the criteria and guidelines,' but it is going to happen after the legislation goes through the Senate. I assume the legislation will pass through the Senate, because I gather from indications that the Greens will support Labor—there is not a lot of surprise there these days. But we are going to have a situation where the legislation passes through the chamber with none of this information available in the community.

Minister, I appreciate the advice you have given about the process, but can you advise the Senate why that process was not undertaken before we got to the point of the legislation being brought to the Senate so that we could have a very clear view and a very clear understanding of exactly what the process is going to be.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

I think, Senator Nash, you may have unfairly characterised what has occurred. I take your point about it being always preferable to have as much detail as possible, but the reality of the way legislation works is that we get the framework of the legislation and then we move to regulations or other things that implement that broad legislation. People always want all the detail when, in fact, that is not the way the legislative process works. We pass the law and then we deal with the regulation and the applicability.

However, I am told that a discussion paper has been circulated which deals with the process issues and that there has been a list of potential indicative activities also put out there for people to see. So, as I understand it, a lot of work has been done to try and give people a sense of how things are going to work, what the processes will be and the sorts of things that will be regarded as indicative or eligible activities.

We often have this debate in this place. Oppositions want certainty about a whole range of things that flow from legislation, and that is not possible and is perhaps not dealing with things in the right order. I take on board what you are suggesting, but I think the answer is: as much has been done as possible to take forward the process to inform people through the discussion paper and the list of potential indicative activities to try and give a sense of how it will work. As we have described before, there is an engagement with stakeholders et cetera that will take us through those processes. It is not possible to put all that into the legislation but there has been an attempt to inform. Obviously, if the legislation is carried then we will take forward that work.

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

The amendments standing in my name deal with the issue of additionality—in other words, what is considered to be a positive factor to be eligible for a carbon farming initiative. The amendments say that if it has a beneficial impact on the availability of water or land and resource access for agricultural production—food security and water security—it ought to be considered. I understand the arguments that the government has put up in relation to this, but can the government give an explanation in the context of division 6 of the legislation? Page 60 of the bill at clause 41, the additionality test, refers to common practice—which the minister has referred to—but does the minister concede that, in its current form, clause 41, the additionality test, does not give any positive inducement or any positive support for a carbon farming initiative that actually has a beneficial effect on the availability of water or land and resource access for agricultural production?

It makes reference to common practice but, all things being equal in terms of common practice, it seems that having an initiative that is positive and beneficial in terms of water and food security will not be treated any differently from a project that does not. So, whilst I understand the government's reasons for not supporting my amendments, what scope is there for the beneficial aspects of water and food security in an initiative to be considered in a way that would expedite or assist it in getting the status of a carbon farming initiative?

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

I am advised that, as we see it, the additionality test ensures that carbon credits represent an extra tonne of carbon abatement that can be used to offset emissions from an industrial sector, and it underpins the credibility and value of the carbon credits. Under the CFI, project proponents are required to consider natural resource management plans. Regional NRM plans provide a vehicle for communities to provide guidance of the type and location of carbon farming projects that will deliver maximum social and environmental benefits.

Ultimately, the market will determine what projects come forward, and those that have important co-benefits will naturally stack up better than those without. I get the sense that you are trying to bypass that and almost pick which projects, but we think that that is a better way of those projects being identified.

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

I am grateful for the minister's response but it does not deal with the specific question. These amendments are to uphold the principle that we should be improving water availability and food security in this country. The minister has acknowledged that it does take into account environmental issues as per NRM plans. Natural resource management plans and regional natural resource management plans that we see throughout the country are usually administered at a state and local government level. The concern I have is that those plans do not necessarily deal with food security or improving water availability.

I do not want to labour the point but the nub of the question is this: if a project can be shown to have a beneficial aspect in terms of water security and/or food security and, all things being equal, compared to another project that does not have the same benefits in terms of either water or food security and it still complies with the issue of taking carbon out of the atmosphere, to what extent does a project that is more beneficial for water and food security get preference over a project that does not do that but is equal in all other respects in terms of sequestering carbon?

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

Could I indicate that, given the intensity and complexity of the questions, I am going to bow to Senator Feeney, who has much greater expertise in these matters than I. The government has decided to send in the A team and I have been dragged. I think you will find that Senator Feeney brings a level of expertise, Senator, that you will appreciate.

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

Mr Chairman, on a point of order: isn't sarcasm against the standing orders?

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator Xenophon, that is not a point of order.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

I was throwing myself on the mercy of the chamber.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Actually, you were throwing me on the mercy of the chamber.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

Senator Feeney, who has been photographed recently as a member of the Greens, will be handling these matters of environment—

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

With a green tie.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

with a green tie on for the government. I defer to his superior expertise.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator Feeney, do you wish to add further comment?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I might try to, yes. Senator Xenophon, the contention that the regional NRM plans are not at the moment ready is acknowledged, but there is a commitment from government to work carefully with local communities to get those NRM plans fit for purpose so that they can deliver the maximum social and environmental effects.

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

I know that there is some light-heartedness in the chamber, and I appreciate that. But I actually think it is offensive to the Senate that, when we are debating a very serious piece of legislation such as this, where it is critical to rural and regional Australia that we get this right, the government have not sent in here anyone who actually knows about it. I want to put on the record for the government that if they want their legislation through then they should take it seriously.

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

I take note of Senator Milne's comment. It is not a reflection on Senator Feeney at all, but I think it is a reflection that it is an important piece of legislation and the minister who has carriage of this—in fairness to him and in fairness to Senator Feeney—should be here. Notwithstanding that, I go back to my question regarding all things being equal in terms of additionality—and all things being equal includes the amount of carbon that can be sequestered or stored. If one project has a more beneficial effect than another project in terms of water security or food security, will that make any difference in the way that it is assessed as a carbon farming initiative? It seems to me that a natural resource manage­ment plan administered by states or local government would not necessarily deal with those specific issues, particularly in relation to food security.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I understand that carbon abatement is the criterion and that it is not considered possible to come up with a criterion or a regime that deals with other questions. You cited water and food security. I understand that would be a fragmentation or a distraction from the core purpose of this legislation. So, to be explicit, the criterion is carbon abatement.

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

Sometimes it is good to have a distraction, because one of the great unintended consequences of the managed investment schemes was the effect on water security and water interception, the distortion of the water market here in Australia and the effect on family farms, driven by tax write-offs. Whilst the intent of this bill is very different, I still think that there are issues that we need to be particularly mindful of: water security and food security. However, this relates to additionality, in terms of a positive factor.

I am not sure that the coalition is with me on this, but I will not seek to divide in relation to this amendment. I think it is important, in relation to any negative consequences on water security and food security, that that should be a negative factor in terms of whether a carbon farming initiative is improved, so that we do not go down the same path that this country went down in managed investment schemes, which have been abused and rorted. I acknowledge the very different intention of this particular piece of legislation.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

The government has committed to establish a co-benefits index to help the market reward co-benefits such as biodiversity. In your summation of the issues around water—an issue with which I know you are very familiar—you were taking a long and historical view. I would simply say that this legislation is setting about the task for which it is designed. As you would appreciate, there is, I would submit, a comprehensive government strategy, well assisted by the work of the relevant committee, to deal with those water security questions.

Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Link to this | Hansard source

The opposition wishes that Senator Xenophon's amendments were not necessary. We wish that because, as we have stated a number of times in this debate, we would much rather that the full suite of regulations were available. Were they available for us to review, we may find that the concerns that Senator Xenophon justifiably expresses are covered in those regulations. Unfortunately, they are not available. This legislation is very dependent upon different sets of regulations that it will work under. Although Senator Evans, when he was in the minister's chair, indicated that it is not unusual practice for regulations to come later and for the parliament to deal with matters in that order, this is such a significant bill with significant reliance upon the regulations that we do not think it is unreasonable to say there should be far greater certainty about them at the outset. Once in place, of course they can change—that is the nature of the beast—but, at the outset, we think there should be certainty to deal with the types of issues that Senator Xenophon's amendments to section 41 would provide for.

I have highlighted a few times in this debate that there was a very thorough Senate inquiry undertaken into this legislation. Whilst I do not agree with all the findings in the majority report, I give credit to not just the committee secretariat but also to Senator Cameron and government members in that they rightly highlighted a number of concerns. They presented extensive evidence that was brought out in the committee report. It highlights serious concerns about the application of the common practice test and how it would affect, in particular, individuals and organisations who have already taken steps to abate emissions or sequester carbon in some way.

I want to again highlight some of the evidence that the committee heard and the committee's recommendations, and then seek the minister's response. We heard from Carbon Farmers of Australia and the Carbon Farming and Trading Association who claimed:

... the ‘business as usual’ rule, which penalizes Landcare farmers and other progressive landholders who have taken up carbon farming techniques early and—

potentially—

rewards laggards who continue to degrade their soils.

The association described this treatment of progressive farmers as 'the ultimate perverse outcome'. They stated:

The impact of that is that there will be property not under contract for carbon farming. By that I mean that these progressive farmers will eventually sell out or pass the farm on and there is no guarantee that that regime will continue. We believe that people would not desecrate a carbon rich environment because of the obvious value of such a thing, but it is not guaranteed.

Similarly, when it comes to how the common practice test is applied to future practices, the New South Wales Farmers Association highlighted a number of concerns about its application. They provided particular concerns in their evidence, and those concerns are highlighted in the committee report. They said:

The way additionality is applied will be critical to uptake of the scheme in the farm sector.

The aim of the CFI should be to facilitate and [motivate] farmers to adopt climate friendly farming practices as quickly as possible. A threat to withdraw this funding should practices become common, or prove to be profitable in the absence of carbon credits, will be a red light to the majority of commercial farmers.

Such threats also raise doubt about the practicality of raising funding for projects with uncertain future cash flow.

While appreciating the difficulties posed by Kyoto rules applying to additionality, a central principle of the CFI should be that if a farmer increases or conserves carbon beyond a base line he will be paid for the service. In this regard, financial additionality or common practice considerations should neither exclude participation nor lead to later disqualification of an established project.

Obviously these are difficult issues. Senator Xenophon's amendments do not particularly deal with some of those broader concerns around the common practice test that I and Senator Nash highlighted before, but it does provide some greater level of certainty. The Senate committee in its recommendations urged the government to ensure there are no perverse incentives to cease existing abatement projects and to encourage first movers to undertake further abatement or sequestration activities under the carbon farming initiative. It recommended the government consider what more could be done to fast track development of methodologies and to develop and test the workability of carbon offset projects in key agricultural industries.

I am seeking, as we go through this committee stage, to get the government to put on the record how it is responding to these committee recommendations—not just the recommendations that the opposition may have made or the concerns that the opposition may have highlighted but the recommendations of the committee chaired by Senator Cameron in the majority govern­ment report. Even though it would look as though amendments such as Senator Xenophon's will fail, it is important that, at least on the record, we have some level of detail about how the government is going to provide greater certainty than this legislation in its current form will provide.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I understand that in the House of Representatives Mark Dreyfus MP, in closing the debate in the House, delivered a statement which responds to the issues raised in the majority committee report on behalf of the government.

Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Link to this | Hansard source

I appreciate, as Senator Xenophon said in response to Senator Milne's comments, that Senator Feeney is even less of an expert on this legislation than I am, and I certainly do not profess to be one. My colleague who sits to my left is more knowledgeable than I. It is not terribly helpful to the conduct of debate when we are simply referred to statements in the other place or the like. I do not know where Senator Ludwig is at present. Frankly, if in response to broad questions like the one I may have just asked or more detailed questions like the ones that Senator Xenophon was asking we cannot get clear answers on the record, we should honestly move onto something that we can deal with today and we can all be back here bright eyed and bushy tailed in the morning.

Fiona Nash (NSW, National Party, Shadow Parliamentary Secretary for Regional Education) Share this | Link to this | Hansard source

I concur with the remarks that Senator Birmingham has just made. This shows a huge disrespect to the chamber. The reason we have the committee stage is so we can go through legislation in a detailed manner, ensuring that everybody in the chamber has the opportunity to be provided by the minister, by the government, the detail that we need to be able to make an informed decision on legislation. This is a joke. This is not informing us in any way, shape or form—and no disrespect to the minister at all because it is not his fault. There is no way that we are going to be able to glean any reasonable amount of information from this process which will inform our decision-making process on this legislation.

I think it is simply another example of the incredibly shoddy way this government is dealing with legislation and the way it is running the country. The minister should make himself available as soon as he possi­bly can. I concur with Senator Birmingham: go on to something we can deal with and we will come back to this when we can get the appropriate level of advice.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Taking those comments on board, and I understand the spirit in which they were made, I guess I would say that I am in a position to discuss particular amendments. A number of amendments have been proposed and I think we would be serving this deliberation at the committee stage well if we moved to questions that were perhaps more specific and directly relevant to particular amendments.

Fiona Nash (NSW, National Party, Shadow Parliamentary Secretary for Regional Education) Share this | Link to this | Hansard source

Thank you, Minister. I do appreciate that, but with the greatest of respect I did not realise the government were able to pick and choose which questions they answered. All questions put forward by senators are indeed relevant to the legislation in order for us to obtain the information we need.

Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Link to this | Hansard source

If the minister wants, then the minister can get. Perhaps the minister could explain in relation to the additionality test as outlined in section 41 concerning Senator Xenophon's proposed amendment (2) what, if any, consideration the beneficial impact of the availability of water will have in the additionality test?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

That is something I dealt with just a moment ago. The answer is that this is a bill that does not take on board criteria that distract it from its goal, and its goal is carbon abatement. That is the advice. My simple answer to you is that that criteria are not found.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that amendments (1) and (2) on sheet 7118 moved by Senator Xenophon be agreed to.

Question negatived.

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

by leave—I move amendments (1) and (2) on sheet 7112 together:

(1)   Clause 5, page 9 (line 18), omit "section 44 or 45", substitute "section 44, 45 or 45A".

[eligible interests in an area of land]

(2)   Page 72 (after line 33), at the end of Division 9, add:

45A Eligible interest in an area of land—native title land

Scope

(1)   This section applies to an area of land if:

  (a)   the area of land is native title land; and

  (b)   there is a registered native title body corporate for the area of land.

Eligible interest

(2)   For the purposes of this Act, the registered native title body corporate holds an eligible interest in the area of land.

[eligible interests in an area of land]

Just to remind the Senate what these amendments do, one of the real benefits of this legislation is that it should open up opportunities in rural and regional Australia for Indigenous people. This is something that everybody in the Senate I am sure supports. The way the legislation is currently written is extremely restrictive. As Senator Xenophon commented earlier, the National Native Title Council came out very strongly saying that a large proportion of Indigenous land in Australia is held under non-exclusive native title and, hence, people who have non-exclusive native title would not be able to benefit from the Carbon Farming Initiative.

In the committee hearing I was very concerned about that. I was very concerned actually about two things in relation to Indigenous people. One is the whole legal question around who has some interest in the carbon rights on any piece of land, and that is where this amendment goes to because it expands the coverage from just exclusive native title to non-exclusive native title interests. I think that is a really big improve­ment to the legislation and will give access to more people. The second level of concern I have with regard to Indigenous communities is that, even if we get this expanded definition for exclusive and non-exclusive native title having access to the opportunities under the Carbon Farming Initiative, Indigenous communities may not have the capacity to be able to engage in and develop projects. I have certainly talked to the government at length, and indeed the Senate committee recommended that we actually address that, and I am confident that that is being done. I have spoken to the government and I am well aware that there have been lots of discussions with the Closing the Gap program and others to try to make sure that there is funding available to deal with capacity building in Indigenous communities.

Just to be clear, this amendment is very specific. It expands the coverage of this legislation beyond exclusive native title to cover non-exclusive native title rights as well. The impact of that will be in the size of the land. For example, on Aboriginal land that is not freehold land—Aboriginal reserve and so on—you find that you are not going to get the take-up and we need the take-up. The areas detailed in the committee report, for example, show that the area of land where exclusive native title determination exists is 693,930 square kilometres and the area of land where non-native exclusive title has been determined is 344,007 square kilometres, accounting for approximately one-third of land where native title has been determined. So I think this will be a good outcome. I understand the government is going to support this and I know that it is something that Indigenous communities have really put very strong views forward on. It will be a welcome improvement to the legislation. I urge the Senate to support it.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

As Senator Milne has pointed out, at present the bill is silent on eligible interests for native title and native title interests would not have a right to consent to projects. The Greens amendment would require registered native title holders, whether exclusive or non-exclusive, to consent to sequestration projects being undertaken by others on crown land. The amendments would address claims by Indigenous stakeholders that non-exclusive native title holders have been excluded. The government is still consulting on native title issues with Indigenous and other stake­holders.

As Senator Milne foreshadowed in her remarks, the Greens amendment is being supported by the government. We believe that this will allow native title holders the opportunity to negotiate their participation in CFI projects undertaken by others. This is appropriate, as native title is an ongoing right in the land on an identifiable register and the proposed amendment will ensure certainty for registered native title holders similar to other land interests and is consistent with the Native Title Act.

Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Link to this | Hansard source

I thank Senator Milne for moving these amendments and the Parliamentary Secretary for Defence, Senator Feeney, for his comments. I highlighted earlier when speaking to amendments moved by Senator Cormann on behalf of the opposition the concerns of the government of Western Australia about the implications of the native title treatment in this legislation. Again I highlight the one particularly relevant statement of the Premier of Western Australia, Mr Barnett, about this issue:

… the Bill, by clear negative implication, indicates that the relevant State Minister does not hold an "eligible interest" in State Crown land if that land is not Torrens system land and is subject to a determination of exclusive possession native title.

Parliamentary Secretary, you indicated in your response that you are continuing discussions with stakeholders and that those stakeholders include the state governments. Can you indicate in a little more detail to the chamber the nature of those negotiations, whether they particularly involve the government of Western Australia, whether they particularly relate to the concerns that the Premier of Western Australia has highlighted and whether there are any implications from the amendments moved by Senator Milne for the concerns that the Premier of Western Australia highlighted?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I am advised that the discussions with Western Australia are about questions that are particular to the Crown in the state of Western Australia. They are not in addition to nor do they overlap with these amendments. As a consequence, these amendments do not go to the subject matter that is being discussed between Western Australia and the government.

Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Link to this | Hansard source

To clarify, these amendments if passed and included in this bill, should it pass, will have no bearing either positive or negative on the concerns highlighted by the Premier of Western Australia?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I understand that the Western Australian issues are going to be dealt with substantively by regulation. The subject matter between Western Australia and the federal government is that mining leaseholders should have a right to consent to projects, and that is something that this government recognises.

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

I indicate my support for Senator Milne's amendments. I think they are very sensible amendments. They deal with the matters that were raised by the Senate Standing Committee on Environment and Communications that looked into this bill. I note that the committee's recommendation No. 7 states:

The committee recommends the government address obstacles to indigenous participation in the CFI—

the carbon farming initiative—

including resolving outstanding uncertainties in relation to participation by holders of non-exclusive native title.

My question to both the parliamentary secretary and Senator Milne is whether it is their understanding that the particular issue raised by the committee will be substantively resolved by these amendments. That is my reading of it. Also, has there been any feedback from some of the key stakeholders, such as the Kimberley Land Council and the National Native Title Council, to the amend­ments? Again, I feel that they are very sensible amendments that deal with the issue of Indigenous participation.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I am advised that the answer to your first question is yes and that the answer to your second question is also yes, that those groups you name do support the amendments. It is the government's view, as my first yes was intended to convey, that these amendments do address the question you pointed to in the committee report.

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

To respond to Senator Xenophon: yes, Indigenous stakeholders are very supportive of these amendments and are pleased that the government is supporting them to address the ability of non-exclusive native title holders to participate in the carbon farming initiative. Of course, there are some Indigenous stakeholders who would have liked them to have gone further and to have had them applied to areas of land that have not yet had a designation of native title. Whilst I have some sympathy for that view, I cannot see how you would make those determinations at this point. However, I have indicated that I am prepared to have a look at that in the future. There will be a review of this legislation in the coming years and, in that context, I will certainly be open to being more expansive still. But we need to see the legislation working. I think at this point the key is to get the legal issues sorted out and then get the capacity building sorted out. Then if we can expand it further well and good.

Question agreed to.

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

by leave—I move amendments (3) and (4) on sheet 7118 together:

(3)   Clause 56, page 81 (line 19), after "Act", insert "and subject to subsection (1A)".

[excluded offsets projects]

(4)   Clause 56, page 81 (after line 21), after subclause (1), insert:

(1A)   Notwithstanding subsection (1), if a project:

  (a)   was established as, or as part of, a managed investment scheme; or

  (b)   is determined by the Minister, on the advice of the Domestic Offsets Integrity Committee, to have an adverse impact on:

     (i)   the availability of water; or

     (ii)   land and resource access for agricultural production;

the project is deemed to be an excluded offsets project.

(1B)   A determination under paragraph (1A)(b) is a disallowable instrument for the purposes of the Legislative Instruments Act 2003.

(1C)   In this section:

managed investment scheme has the same meaning as in section 9 of the Corporations Act 2001.

[excluded offsets projects]

Mr Chairman, could you bear with me briefly. I apologise to those listening on NewsRadio for the delay—all seven of them! These amendments relate to the so-called negative list—that is, negative factors in terms of the approval of a Carbon Farming Initiative project. They state that projects based on advice by the Domestic Offsets Integrity Committee that have an adverse impact on the availability of water or agricultural production should be on the excluded offsets project list. As I indicated in my second reading contribution, ensuring Australia's water availability and security is vital. I do not believe it should be left up to regulations. If we look at what occurred with the managed investment schemes, the unintended consequences in relation to water security were not dealt with and there was a very real concern that those schemes led to significant rorting, if you like, that had a significant adverse impact on water security in this country and on the water market.

Amendment (4) also states that, where a forest was established by a managed investment scheme, it too should be on an excluded offsets list. Do not reward a project that has been set up as a managed investment scheme; it should be an excluded item. I am aware that the minister and the department have confirmed that managed investment schemes will not be allowed to participate in this scheme. If that is the case—and could I get confirmation of that—then let us put that into legislation. This amendment does this. To put this in context for my colleagues, this relates to ensuring that, when it comes to dealing with issues of water security, adverse impact on water is a significant factor in determining whether a proposal under the Carbon Farming Initiative is approved or not.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Firstly, I am able to confirm on behalf of the government that managed investment schemes are not able to participate. I understand that that is made clear in the draft regulations that can be found on the website and were also included, I think, as an appendix to the Senate committee report. Notwithstanding that, the government does oppose Senator Xenophon's amendments on the grounds that these amendments would require the minister to make decisions to exclude individual projects, and such a process would add significant regulatory complexity to the Carbon Farming Initiative and undermine participation. We are of the view that it would also create investment uncertainty for individual landholders. We have already committed to parliament that we will make regulations that would put forestry managed investment schemes on the negative list of projects and, as I said, they are excluded from the scheme.

Fiona Nash (NSW, National Party, Shadow Parliamentary Secretary for Regional Education) Share this | Link to this | Hansard source

In relation to these particular amendments, I want to refer to clause 56 itself, because one of the issues with dealing with this piece of legislation now before we have the regulations is, as I said before in this place and as I am sure I will say again before we get to the end of this process, the complete lack of detail that the Senate has to deal with in determining our position and our understanding of this bill.

If I can just take the Senate to clause 56 itself, it says:

(1)    For the purposes of this Act, an offsets project is an excluded offsets project if it is a project of a kind specified in the regulations.

(2)    In deciding whether to recommend to the Governor-General that regulations should be made for the purposes of subsection (1) specifying a particular kind of project, the Minister must have regard to whether there is a significant risk that that kind of project will have a significant adverse impact on one or more of the following:

  (a) the availability of water;

  (b) the conservation of biodiversity;

  (c) employment;

  (d) the local community;

in, or in the vicinity of, the project area, or any of the project areas, for that kind of project.

My point, Parliamentary Secretary, is that all we have to go on in terms of any security or surety for the community out there to know that there will be no adverse impacts is this line:

… the Minister must have regard to whether there is a significant risk …

That is it. Everything else is in the regulations that we do not have. That is nowhere near the level of certainty and the level of detail that this chamber needs to have to determine whether or not that is appropriate. I am very supportive of Senator Xenophon's amendment, because I think it deals with some of the issues that are facing us very clearly, very well and very simply. The very fact that I am supportive of this is because of the lack of detail that is available for the Senate. The government is saying: 'Trust us. This'll come later. Trust us. We'll give you the regulations in a little while.' I note that Minister Evans said a little earlier, 'This is the way the process works: you get the framework of the legislation and we do the regulations later.' By and large that is the process, but we expect within the framework that is given to us with the legislation a level of detail, certainty and understanding of how this will operate. That is simply not there, and that is not good enough for the chamber, which is why the amendment that Senator Xenophon has put forward is appropriate, because it deals with three things and gives absolute certainty that those three things will be excluded offsets projects.

I note the parliamentary secretary has already referred to the managed investment schemes. I think—I certainly do not want to verbal you, Parliamentary Secretary—he said they would be excluded offsets projects. But we need to be sure about the other issues of the availability of water or land and resource access for agricultural production. I do not see how including this now in any way, shape or form can have a negative impact on communities down the track, because what Senator Xenophon's amendment is saying is that, if any of these proponents bowls up a methodology that is going to have an adverse impact on the availability of water or land and resource access for agricultural production, it should not be accepted; it should not be allowed. I cannot see how that makes anything other than—to borrow Senator Ludwig's phrase—perfect common sense. It is just absolute common sense.

It worries me if the government are not prepared to say, right here and now, that they will not allow anything that is going to have an adverse impact on water or on land and resource access. Why not? Why won't they say, right now, 'We're going to rule anything out that is going to have an adverse impact on the availability of water or land and resource access for agricultural production'? Why won't they rule it out? That should cause great concern, because it is a very simple piece of certainty for producers, for landowners, for potential proponents out there to know exactly that those particular things are going to be excluded offsets projects—and so they should be.

By not agreeing to this amendment, are the government saying that they will be allowing projects that have an adverse impact on those things? Is that what the government are saying? I cannot read that any other way than that indeed they expect there may be something that comes through. On this side of the chamber we will not stand here and accept that the government are going to allow any level of risk for adverse impact on those things for our communities. It is simply not acceptable. As the minister has indicated that they are opposing the amendment, I ask him: does that mean that they will be considering projects put forward that have an adverse impact in those areas?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Firstly, on your point concerning regulations, the government does not accept your contention that there has been any process of obfuscation or avoiding the oversight of this parliament. Let us be very clear about this, Senator Nash. As I said a moment ago, the draft regulations can be found on the website; they can be found in the committee report. But having the regulations come in in the aftermath—

Fiona Nash (NSW, National Party, Shadow Parliamentary Secretary for Regional Education) Share this | Link to this | Hansard source

Rubbish!

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Listen, I endured your speech; you can perhaps endure mine. You made the remark that the oversight of the parliament is important, and of course we accept and understand that—it is. But let us understand that, in the aftermath of this legislative framework coming down and the regulations being finalised, they will come before this parliament and they are disallowable. So not for a moment are you finding yourself inveigled into a process that denies you or, indeed, any other senator the opportunity to be heard.

Fiona Nash (NSW, National Party, Shadow Parliamentary Secretary for Regional Education) Share this | Link to this | Hansard source

Oh, please!

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

That is, frankly, how it is. Going to your other point, it is the government's view that these matters—

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator Nash, on a point of order?

Fiona Nash (NSW, National Party, Shadow Parliamentary Secretary for Regional Education) Share this | Link to this | Hansard source

Just of clarification, Chair, and this is quite a serious question.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator Nash, it is not a point of order.

Fiona Nash (NSW, National Party, Shadow Parliamentary Secretary for Regional Education) Share this | Link to this | Hansard source

Then could I make it a point of relevance: I am not sure the minister was being relevant in how he expressed or indicated that the draft regulations were on the website, because I do not think they are. Perhaps it was relevant, but if you could clarify that because my understanding is they are not there.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator Nash, the parliamentary secretary has been relevant in the broadest sense.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Thank you, Chair. To be fair, Senator Nash, I was dealing directly with a point that you made in your remarks, which is from your perspective how unhappy you were that these matters are being dealt with in regulation. My answer was germane to that point.

Going to your substantive point, it is the government's view that there are a range of technical issues that are dealt with here. The Senate committee recommended that we be careful to define the list and to avoid excluding low-risk projects. We are taking an approach in the legislative framework we are seeking to establish that these matters—and they are, as you have said, important matters—be dealt with on the basis of evidence, on the basis of science, on the basis of community concerns and not on the basis of politics and the politics of the moment. I think that is a particularly important point because the amendment you are at least countenancing the idea of supporting would, in giving the minister a direct discretion, in our view change the framework unhappily.

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

I would be grateful if the parliamentary secretary could confirm my understanding on this, and I am very happy to be corrected if I am wrong: are there actual draft regulations available or is it the indicative list that is available? I am just trying to clarify what the status of it is.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

It being almost 6.50, you will have to wait for another time for a response on that, Senator.

Progress reported.