Mark Furner (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

The committee is considering Australian Greens amendment (1) on sheet 7377, moved by Senator Ludlam. The question is:

That the amendment be agreed to.

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

I have a question about the impact of the amendment moved and whether it is in fact necessary. Does the government believe the existing definition of 'coal seam gas development' in the legislation does or could include shale gas extraction in any way? Obviously, the purpose of the amendment moved by the Greens is specifically to include shale gas extraction. However, I am wondering if the government has sought any advice or undertaken any consideration as to whether its existing definitions could in fact already encompass shale gas extraction.

Jan McLucas (Queensland, Australian Labor Party, Minister for Human Services) Share this | Link to this | Hansard source

I am advised that the definition in the act is quite explicit; it does not cover shale gas but is quite clear about what coal seam gas is.

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

The definition in the act as it stands states:

coal seam gas development means any activity involving coal seam gas extraction that has, or is likely to have, a significant impact on water resources …

So it does not actually define 'coal seam gas extraction' per se—unless you are able to point me to another provision in the act that does specifically define 'coal seam gas extraction'. Whilst, in industry parlance, it is probably widely accepted that coal seam gas is one thing and shale gas extraction is another, I am wondering if the government's interpretation of that definition, which largely defines 'coal seam gas development' as an activity involving coal seam gas extraction, could in any way include shale gas extraction.

The TEMPORARY CHAIRMAN: The question is that Australian Greens amendment (1) on sheet 7377 be agreed to.

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

I move opposition amendment (1) on sheet 7397:

(1) Schedule 1, item 1, page 3 (line 15), omit "involves", substitute "is a".

This is a relatively simple definitional amendment which is fairly minor and specific in its nature. To put this amendment in some context for the chamber, the proposed section 24D(2)(a) reads:

(2) A person must not take an action if:

  (a) the action involves:

     (i) coal seam gas development; or

     (ii) large coal mining development; and

It then goes on to the other attributes of it being in Australia and having an impact on water et cetera. The coalition's concern with respect to the current wording of this amendment is that 'involves' is a relatively broad term in that obviously actions that may occur on a site which has a pre-existing coal seam gas development or pre-existing large coalmining development may involve as such those developments because they are within proximity on the site or otherwise but in reality those actions may not be related to those developments per se or at least those pre-existing coal seam gas or large coalmining developments may already have been subjected to all of these approvals processes. The coalition contends that it would be better if the bill and ultimately the act read that a person must not take action if the action is a coal seam gas development or large coalmining development and all of the other existing provisions within this section.

This is relatively minor but fairly technical. We would argue it does not change in any way the intent of the proposed amendments to the EPBC Act. In no way does it undermine the coverage of these provisions of coal seam gas developments or large coalmining developments. All it does is ensure that we minimise the potential, remove the potential with respect to this subsection, for there to be any unintended consequences as a result of this going through. We would hate to see a situation, having flagged concerns about the use of the word 'involves' rather than something more definite, that later down the track we saw projects and proposals captured as controlled actions under the EPBC Act that really did not deserve to be so captured given the intent of what we are debating and proposing here tonight.

I would hope that not just the crossbenchers but also the government would see that this is a simple, straightforward, technical amendment that removes and eliminates any potential doubt for there to be any unintended consequences from the legislation. It simply provides a more clear-cut definition and is something that I would hope all sides of the chamber would be willing to support.

Jan McLucas (Queensland, Australian Labor Party, Minister for Human Services) Share this | Link to this | Hansard source

The government does not support the proposed amendments. The proposed amendments would limit the bill to activity which is a coal seam gas or large coalmining development rather than activity which involves such developments. It is intentionally drafted in that way. The amendments as proposed by the opposition would, potentially, create confusion around which activities are or are not covered by the bill.

Coal seam gas and large coalmining developments typically are large and complex, involving infrastructure such as access tracks, pipelines, dams, drilling and excavation. A thorough environmental assessment would consider the impacts of these large projects as a whole. So it is intentionally drafted in this way. The proposed amendment from the opposition, I contend, is not minor or technical. It would actually add confusion of its own, because what we are proposing is that an assessment of the large projects that we are talking about would be done as a whole rather than an isolated element of a large coal development or a coal seam gas project. So, intentionally, the government has drafted these amendments to the act so that the totality of the project will be considered for its potential environmental impact.

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

I thank the minister for the explanation. The explanation adds another layer of concern, however, to my way of thinking in this matter, and that is that the capacity of the government to assess projects through this legislation is unique when it comes to this new subdivision, subdivision FB, that is being inserted into the EPBC Act, because it is a subdivision that requires assessment of matters of national environmental significance that do not have to be assessed for any other types of development. So, Minister, though you said that the government would not want to see a situation where there had to be specific assessment of a coal seam gas development or a large coalmining development—you would rather see assessment of the totality of those developments—it does mean that the aspects of those developments that are unrelated, or are not, at least, a coal seam gas development or a large coalmining development, will have to clear hurdles that they would not have to clear were they not associated with a coal seam gas development or large coalmining development. If you were building a new port, for example, as part of the project, that new port would be subjected—and I am sure the officials will correct me if I am wrong—to these provisions about the significant impact on the water resource or the likelihood of a significant impact on the water resource, whereas if you were simply to make application to the government for approval to build that new port, in an application that did not involve a coal seam gas development or a large coalmining development, then it would not have to clear those particular hurdles around its impact on water resources.

So the risk and the concern here are that it sets up basically two different approval processes for potentially the same type of infrastructure or activity: that if you were building a port, a railway line or anything else for that matter—it could even be a tourist facility on the same site as a coalmine for some reason—it would have to clear the new water-trigger provisions, but if you were building that exact same proposal, without it being in any way close to a coal seam gas development or a large coalmining development, it would not have to clear the water-trigger conditions. So we will be setting up in this legislation essentially a two-tier system.

It is one thing for the government, by proposing, in passing this legislation, to subject coal seam gas developments and large coalmining developments to a different standard than it is subjecting all other economic activity or development proposals to, but it is something quite different for the government to say, 'And anything else that might be associated with that coal seam gas development and that large coalmining development will also be subjected to the higher standard, notwithstanding the fact that the same type of activities undertaken separate from a coal seam gas development or large coalmining development would in fact not face the same level of scrutiny.'

That two-tier approach—that discrimination, as such, against associated activities that requires them to clear a higher hurdle of environmental assessment than would otherwise be the case—is of particular concern and would be fixed by having the coalition's amendment. Yes, that may require there to be distinct assessment processes, in that if a project is a coal seam gas development then it would have to be assessed using the water-trigger tests under the EPBC Act and, separate to that, if it were a port or a rail line or anything else then it would be assessed like any other port or any other rail line under the remaining provisions of the EPBC Act.

I am sure that there are ways to ensure that the regulatory burden of that are minimised and in fact would be minimised, by virtue of the fact that you are not applying additional environmental conditions to those supplementary activities that might be undertaken in addition to the coal seam gas or large coalmine developments. So, Minister, I hope that you understand the point that I am making there, and if the government has some comfort in that regard I would welcome it, but otherwise I do think that there is an issue here: that we are setting up a situation where some actions of a development will face tougher environmental laws than would be the case were they not to be associated with a coal seam gas or large coalmining development.

Jan McLucas (Queensland, Australian Labor Party, Minister for Human Services) Share this | Link to this | Hansard source

I hope I can provide the senator with some clarity. What we need to be clear about is that the other activities that are involved in a coal seam gas project or a large coalmining development would be captured if they have an impact on the water resource. So, a port, which may be the point where coal is exported, would be assessed in a different way. But, if the activity has an impact on the water resource and if it is related to a coal seam gas project or large coalmining development, it needs to be assessed as a whole, so that all of those impacts that may impact on the water resource—or if they are related to a coal seam gas development or a large coal development—need to, by their very nature, be captured so that they are included. But that is the definitional umbrella, if I can say that. So the point you are trying to make is that everyone would be included only if there is a potential impact on the water resource and they are related to a coal seam gas or large coal development proposal.

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

I thank the minister for the answer. With that in mind, I wonder if the minister would be able to provide an example of the type of activity that may have an impact on the water resource, which would be captured by the definition as it currently stands, but is not a coal seam gas development or large coalmining development.

Jan McLucas (Queensland, Australian Labor Party, Minister for Human Services) Share this | Link to this | Hansard source

In my first explanation of why we were not going to support your proposed amendment, I did indicate that coal seam gas and large coalmining developments typically are large and complex. They involve infrastructure such as pipelines, dams, drilling and excavation. Some of those activities may impact on the water resource, and that is the purpose of the amendments as we are proposing them.

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

I, at least, understand where the minister is coming from. Hopefully, the Hansard record will provide some comfort to those concerned about the scope of this amendment. To my thinking, a dam for the storage of water extracted as part of a coal seam gas development is part of that coal seam gas development. But, if the government is saying that—for the sake of its certainty—it needs to have wording of this nature, such that those dams would be captured, that is obviously the advice the government is operating on. I struggle to see a situation where a dam, which you pump water extracted from a coal seam gas mine into, is not part of your development. Logically—in any way, shape or form—it is. I would still have some concerns that there is a potential for some unintended consequences here. But I note the assurances the minister has given and I hope those assurances prove to be accurate.

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

I move opposition amendment (2) on sheet 7397:

(2) Schedule 1, item 1, page 7 (after line 17), after section 24E, insert:

24F Independent review

(1) The Minister must cause an independent review to be undertaken by a person or body of:

  (a) the operation of Subdivision FB of Division 1 of Part 3 of the Act; and

  (b) the extent to which that Subdivision has contributed to achieving the objects of the Act.

(2) The first review must be undertaken within 4 years of the date that the Environment Protection and Biodiversity Conservation Amendment Act 2013 receives the Royal Assent. Subsequent reviews must be undertaken at intervals of not more than 4 years after the date that the previous independent review is tabled in each House of the Parliament.

(3) The person or body undertaking the independent review must take into account any submissions of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development.

(4) The person or body undertaking a review must give a report of the review to the Minister.

(5) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.

This amendment inserts a new section 24F, and provides for an independent review of the new overall subdivision FB of division 1 of part 3 of the act. This is not an unusual type of amendment to move through these debates. It is not an unusual insertion in legislation, because it is quite common for the parliament to want to ensure that, after a reasonable period of time of operation of a piece of legislation, there is a proper and open review process put in place. That is precisely what this opposition amendment seeks to do. This amendment, if agreed to, would cause the minister to have an independent review undertaken of the new subdivision FB of division 1 of part 3 of the act, the water trigger for coal seam gas and large coal developments, and the extent to which that subdivision has contributed to achieving the objects of the act. It would require the review to be undertaken within four years from the date of royal assent, so it would give at least, one would think, three years or so of operation of the act for people to see how it is working and for it to be properly assessed. It would also require that there be subsequent reviews from thereon in.

Importantly, I highlight at this point—not just to the government but especially to those on the crossbenches—part 3 of the amendment, which provides that the person or body undertaking the independent review must take into account any submissions of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development. I highlight that point specifically because I want to make clear that this proposal for a review is not in any way, shape or form a proposal to undermine the operation of this bill; it could not do so because it does not in any substantive way change the assessments process of the bill. In fact, it seeks to establish a review mechanism that is inherently fair and inherently expert-based, forcing the consideration of the views of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development, which was established by legislation supported by all parties in this place and plays a very important role in providing expert advice to government. The committee would play an important role in the operation of this new water trigger in the EPBC Act, and would be exceptionally well placed to advise and inform a review into the operation of this new water trigger. The review would of course have to be given to the minister, and would be laid before the parliament so as to ensure that it became public.

The coalition believes that this is a very sensible thing to insert into this part of the EPBC Act. This is, as I have highlighted previously, an unprecedented step in terms of the evolution of the EPBC Act: not only to insert a new trigger, a new area of national environmental significance, but a trigger that is specific to only certain industry sectors. And so, having taken an unprecedented step in terms of the evolution of EPBC Act, we think that it is a wise and sensible precaution to ensure that we have a review mechanism built into the provisions of the act, and a review mechanism that is transparent for all to see and agreed to by the parliament. In my time in the Senate I have seen such reviews frequently proposed by Senator Xenophon, the Australian Greens, and other crossbenchers current and past. It is a very common thing. We all know that reviews can be dutifully ignored by the government of the day and the parliament of the day or anybody else and in fact that is what the government has done with the Hawke review—which was the substantive review into the total operation of the EPBC Act. That was a very significant body of work. It recommended that there be amendments made to the act. It recommended that the government make greater use of the bilateral powers that the act gives. The government warmly embraced that at the start of last year and then hurriedly abandoned it at the end of the year in a complete about-face to its adoption of those recommendations of the Hawke review.

Notably the Hawke review did canvass the consideration of additional triggers to be put into the EPBC Act, but it did not canvass the need for an additional water trigger. So, the additional triggers that might have been considered have been ignored by the government, but a new trigger to the EPBC Act—the water trigger that was not canvassed by the Hawke review—has now been inserted into the act. I am the first to acknowledge that reviews are not a complete safety valve to ensure governments act on them, but they do at least expose the processes to which legislation is adhering, how it is working and how it is impacting on industry. To further support the argument for having a review mechanism put in place, I would again highlight the fact that the government has not applied a regulatory impact statement in relation to this legislation. When Senator Conroy was in the chair earlier and was being asked questions about the impact on industry he was unable to state clearly whether or not there was any impact on industry, because, of course, the government has not done what is meant to be a mandatory regulatory impact statement in regard to this legislation.

Since the government has failed to undertake the proper assessments beforehand, failed to do an RIS on industry, failed to properly consult about the development of this bill before us, failed to heed the advice of the Hawke review into the total operation of the EPBC Act—since it has failed in all of those ways—it is sensible and worthy for us to install a safety-valve mechanism into this legislation. That is all this amendment that the opposition is moving will do. It will provide for the proper review of the legislation that this parliament appears determined to pass within the course of the next few hours or days. I would urge all parties across the chamber to support what is a very sensible and safe proposal, a proposal that seeks to ensure a review is done based on the evidence—the evidence of what the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development would tell and inform such a review, which could ensure that in future when this place is debating the operation of the EPBC Act we are all well informed about this new subdivision. I suspect that the government will in part say that there are further review mechanisms already built into the EPBC Act, like the Hawke review that has been undertaken. But in response to those anticipated remarks of the government, I again emphasise the fact that this particular new subdivision that this legislation inserts into the act is quite unprecedented in the operation of the EPBC Act.

Because it is unprecedented, it warrants earlier review than would otherwise be the case and it warrants particular review of its own operation so that we can look very carefully at whether this type of action of singling out industry sectors for a higher environmental standard than other industry sectors is a precedent that has caused any damage to the operation or the credibility of the EPBC Act or whether it turns out to work quite well. We will be able to assess whether it works as efficiently as Senator Conroy was telling the chamber earlier today. Essentially he was making the claims that all of the assessments could be based on information that has already been provided to state governments and that there would be no extra regulatory impost because the information is already there and has been provided to state governments. If a state government gives it a tick, then the Commonwealth government will give it a tick. Those comments obviously led to the coalition questioning the real point or merit of this if the government thought these provisions would simply and completely mirror those at the state level, provide the exact same outcome as those at the state level and duplicate regulation to that extent. However, the government insists on proceeding with this new section to the EPBC Act. Given its insistence to proceed and given the unprecedented nature of these reforms, as I have outlined, the coalition believes it would be sensible for the Senate to mandate that there be a proper and specific review. I would urge the government to adopt and support this amendment and I would hope that the crossbenchers would do likewise.

Jan McLucas (Queensland, Australian Labor Party, Minister for Human Services) Share this | Link to this | Hansard source

The government does not support the amendment from the opposition, but, in saying that, I do agree with a lot that Senator Birmingham has said. It is not unusual to include a review trigger in any legislation and it is appropriate that a proper and open review of legislative changes occur. I can indicate to the senator that in six years' time the EPBC Act will be independently reviewed and reviewed by statutory authority. That is already in the act and that is a reasonable amount of time to include this trigger as part of the overall review that will occur at that time. It will then be synchronised with the review of the whole act, and I think that is a sensible thing to do.

I do not necessarily accept Senator Birmingham's commentary of our government and review process. The Hawke review, as he indicated, was undertaken. There were recommendations that were both regulatory and legislative. A lot of those regulatory recommendations have been dealt with, and the government has undertaken to implement in the next parliament the legislative recommendations that were made as part of the Hawke review. But I think that we have a good outcome here. In six years time we will be able to fully review the operations of the EPBC Act as a whole, and that then will be a comprehensive, open and transparent review process that I think will better serve the amendments that we are making today.

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

I thank the minister for her comments. I appreciate her at least agreeing with the sentiment that it is important to have a proper statutory review mechanism in place. I would disagree with the minister that waiting six years for the currently mandated legislated complete review of the operation of the EPBC Act is the appropriate way to go in this regard. As I have outlined in my remarks, this is an exceptional amendment to the EPBC Act. I do not say that in terms of it being outstanding or brilliant. It is exceptional in terms of the fact that it is unusual and novel. My concern is that—and we saw this with the Hawke review—thorough though the Hawke review was, it is an enormous piece of work to properly review the operation of the entire EPBC Act. It is a very substantial act. It has far-reaching ramifications. It covers, as we know, a huge number of matters of national environmental significance already. There are always proposals to include others, which were canvassed, as I said, in the Hawke review—not notably a water trigger, which we are now debating.

The scope of such a review is far too significant, I think, to adequately do justice to assessing a very specific new section like this one that the government has introduced. That is why the coalition stands by its amendment calling for there to be this particular review just of this new water trigger. This new water trigger takes the EPBC Act, as I said before, into uncharted territory. It is unknown for the act to single out industry sectors, as this amendment does with coal seam gas development and large coalmining development. That is a whole new focus for the act. It will present, as we have already debated in this place, potential perverse outcomes. The Greens highlighted in their first amendment the fact that shale gas operations will not be included but coal seam gas operations will. We just had a subsequent debate about what other actions beyond the specific actions of a coal seam gas development or a large coalmining development could potentially be included. So we have a range of concerns about exactly how this new section is going to work.

Within four years there will have been the opportunity to see a decent number of cases. Within that four years, $38 million on the administration of the act will have largely been spent. The 50 new staff in the department of the environment will have been hired. The systems will have been ironed out, one trusts, for them to work out exactly how it is going to operate. We will have a good idea by then as to whether in fact it works seamlessly with the states, as Senator Conroy has sought to assure the chamber already in this debate. So there will be ample evidence to be weighed and considered for a review. Ample time will have elapsed after the period of several years to, importantly, give it some specific attention. Waiting another six years for the next complete legislative review, which then, as history suggests with the Hawke review, will take quite some time to complete and which will take potentially even longer for the government of the day to respond to in a comprehensive way, means that ultimately it will be many, many years that we leave this new section with the water trigger specific to the two industries in question in operation without any real test or any real assessment as to what its impact is.

We need to understand and remember that this proposal came essentially out of left field. As I understand it, this legislation never even made its way to cabinet. This was done on the run by a government that just wanted to appease the member for New England. They wanted to keep Mr Windsor happy when he said, 'We must do this.' When Mr Burke, as the minister, said, 'Actually it will align with some of our political concerns and issues we are facing in New South Wales at present,' the government of the day said: 'Okay. We will jump. We will do this.' The Prime Minister gave Mr Burke the nod. The minister introduced the legislation, and its introduction was the first, I gather, that certain key ministers even saw of it.

Such is the dysfunction in the government that we are quite used to these types of issues happening. The government surprises industry and many key players with what actually happens with regard to the legislation that is brought forward. We will debate shortly the fact that the government accepted quite significant amendments to the operation of this legislation in relation to the potential for bilateral approvals on the floor of the House out of the blue and again with no proper consultation. The government, as highlighted in my earlier remarks, failed to carry out a regulatory impact statement on this legislation and really has demonstrated that it has given very little consideration to exactly how this will work and what the impact will be.

That is why, if this is passed, as it will be, it deserves to at least be subjected to a proper, thorough review at the earliest reasonable opportunity. The earliest reasonable opportunity is not six years away, when the whole act is scheduled for review; the earliest reasonable opportunity to review this is in around three or four years' time, when there will have been ample controlled actions assessed and ample evidence to work with, and when the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development will have been in operation for around four or five years.

It is one of the tragedies of this rushed and reactive piece of legislation before us that the independent expert scientific committee has in some ways been sidelined from this process, because it was the great unifying reform this parliament took when it came to how coal seam gas developments would be assessed. There was an agreement that significant funds, significant expert resources and significant skills would be applied to ensure that we developed the right informed body of knowledge that could guide both Commonwealth and state approvals processes. This expert body would inform states about the impact that coal seam gas or large coalmining developments had on water resources, and in doing so would ensure that the states were far better equipped and informed to deal with those water resource questions. It would also inform the Commonwealth with regard to its approval powers across the suite of measures that the Commonwealth has historically undertaken.

Sadly, whilst the committee will keep doing its work and will now be able to inform on these matters as well, it is a shame that it was not given a chance to demonstrate that it could address the community concerns that existed, and manage to work across both state and Commonwealth boundaries to provide an effective outcome. The government chose to go through this approach instead and, having gone down this pathway, we deserve to put in this legislation something that will give a clear and specific independent review mechanism to this unique addition to the EPBC act, something that would ensure it is done at the earliest opportunity. That is why I urge the chamber to support this amendment.

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

The question is that opposition amendment (2) on sheet 7397 be agreed to.

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

by leave—I move opposition amendments (1), (2) and (3) on sheet 7382 concurrently:

(1) Schedule 1, item 3A, page 7 (lines 24 and 25).

(2) Schedule 1, item 4A, page 7 (lines 28 and 29).

(3) Schedule 1, item 4B, page 7 (lines 30 and 31).

At the outset, before I necessarily make longer comments in favour of these amendments, can I direct a question to the minister in this regard. These amendments seek to remove an amendment that was inserted into the legislation in the House of Representatives. That amendment limits the capacity of the government or future governments to use bilateral approvals and agreements in relation to the operation of this part of the EPBC Act. My question to the minister is: why is it necessary and justifiable to oppose or disallow bilateral agreements solely in relation to coal seam gas and large coalmining developments and not in relation to any other developments that may be controlled actions as a result of any other of the triggers in the EPBC Act?

Jan McLucas (Queensland, Australian Labor Party, Minister for Human Services) Share this | Link to this | Hansard source

Thank you, Senator Birmingham, for the question. While there is a sound understanding of the standards to meet in decisions with regard to other matters of national environmental significance, this is a new matter of national environmental significance and it is important that, in the first instance, we develop the standards through mechanisms such as the scientific committee before we seek to delegate such powers. As I said, this is a new matter of national environmental significance; it has emerged over a very short period of time. It is important that we get a regulatory regime in place which we can be confident about before we start using the delegated powers of the EPBC Act.

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

) ( ): I have a further question to the minister. Senator Conroy put great store in relying upon the information that would be provided to the states as part of the assessment process for this new trigger. If it is reasonable to rely upon the assessment process that is undertaken at the state level and the information given to governments at the state level as part of this new assessment trigger then why on earth and how on earth is it unreasonable and necessary in a totally prescriptive way to legislate out any possibility that a government could indeed undertake a bilateral approval? Further to that, I note the emphasis the minister gave to the fact that the reason for singling out this one section of the EPBC Act in terms of disallowing the use of bilateral approvals is that this is a new matter, a new area of consideration and that, in the minister's words, 'in the first instance' it is appropriate that such approvals be undertaken at the federal level.

There is nothing, of course, that mandates the government of the day to actually use the bilateral approvals. In fact, in the history of their existence since 1999, as I understand it—and I am sure the officials will correct me if I am wrong—they have been used only once by a government in relation to a heritage matter regarding the Sydney Opera House. So they are hardly excessively used. It would be completely within the domain of the government to not use the powers that are there. They have effectively lain dormant since the EPBC Act was first passed. They could well continue to lie dormant. They lay dormant whilst all of the initial matters of national environmental significance, which were once new matters in terms of the passage of this bill, were established in the processes and guidelines.

So, Minister, your response, which I am grateful for, is, however, unsatisfactory in that there is no rationale as to why the government needs to legislate out the future capacity of itself or future governments to enter into these types of bilateral agreements. What is the government’s justification for doing this, in a legislative sense—which is of course permanent until this parliament chooses to change it at some future stage? Why would this one new matter of national environmental significance, which applies only to two particular industries, require a legislative change for a bilateral approvals process to be entered into at a state level? For virtually all of the others, with I think the exception of the nuclear option—the nuclear trigger, which sounds just as bad—the government of the day could wake up tomorrow, as indeed the Prime Minister did last year, and decide to negotiate a bilateral approval. Why was it acceptable that, for all those others, a government could make an executive decision to enter into such approvals, whereas for this one in particular you seek to bind all future governments and require legislative change to be able to undertake such activity?

Jan McLucas (Queensland, Australian Labor Party, Minister for Human Services) Share this | Link to this | Hansard source

My earlier answer stands.

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

I appreciate that Senator McLucas has been attempting to answer my questions and respond to my comments in a reasoned and sensible way. I appreciate that, perhaps in this instance, through no fault of Senator McLucas, there really is little reason or common sense as to why these provisions have been put into the bill before us.

Let us be very clear here: this opposition amendment is about removing a last-minute amendment to this last-minute bill. The last-minute amendment was made on the motion of the member for New England in the other place. He amended the legislation so that it would prohibit and limit the capacity of future governments, or this government, to be able to enter into bilateral arrangements with state governments. What are these bilateral arrangements I keep referring to? They are the capacity for the Commonwealth to sit down with the states and negotiate an agreement that would try to provide some streamlining, some level of efficiency to the operation of the EPBC Act.

The amazing thing is that the government, by its adoption of the member for New England's amendment, has now completed a full about-face in the space of 18 months in relation to these bilateral approvals. It is not that long ago—only at the start of last year—that the government was arguing that it wanted to see greater use of bilateral approvals and bilateral agreements. This was the recommendation of the Hawke review. The Hawke review, amongst its many recommendations, encouraged efficiencies, encouraged an elimination of duplication and encouraged the government to look at how it could better streamline agreements and arrangements with the states. So it is that the government went to the 12 April 2012 COAG meeting and produced a communique that stated:

The Commonwealth will work with the States and Territories to improve the process for approvals of these categories—

projects within the Commonwealth's current jurisdiction affecting World Heritage sites and specific areas of action, including nuclear actions, defence development and developments affecting Commonwealth waters—

… for consideration by COAG at its next meeting.

The government made very clear and the Prime Minister made particularly clear in her media release—a joint media release with the Minister for Finance and Deregulation—of 13 April 2012 that bilateral agreements were a key part of what she saw as being a way of getting a better arrangement for environmental approvals in place. The Prime Minister, in her statement and in her press conference, said at the time:

… what we want to work towards here is a streamlined system, so that projects don’t go through two layers of assessment for no real gain.

And so the classic examples that are brought by business is where people have gone through sequential assessments, so it’s double the time, things that have been required for the first assessment are required in a slightly modified form for the second assessment, so they don’t even get the benefits of just uplifting the work and re-presenting it, it’s got to be redone.

Clearly that is an inefficient system. At the inaugural meeting of the Business Advisory Forum yesterday, the Prime Minister said:

… business leaders raised delays in environmental approvals and assessments as a major cost. These delays, due to duplicative processes across federal and state systems, can take businesses months or even years to resolve.

Today COAG acted on that concern and the Gillard Government and states and territories agreed to fast track arrangements to use state assessment and approval processes by March 2013.

The Prime Minister went on to say:

The removal of these regulations will protect the environment whilst ending the costly delays that result from double-handling and duplication.

So we have a situation where, in March last year, the Prime Minister said the Gillard government and states and territories agreed to fast-track arrangements to use state assessment and approval processes by March 2013. By the end of last year, the government announced that it was not going to proceed in that way. In the face of a scare campaign from the Greens, in the face of some push back from the environmental lobby, the government abandoned its commitment to greater use of state assessment and approval processes and, at the December COAG meeting last year, it walked away from doing so.

It is one thing for the government to get cold feet and decide that it is all too hard in some way, shape or form, but what is remarkable about what has happened now is that the government has done a complete and utter reversal of belief in this space and is now legislating against even the possibility of using such state approvals processes—legislating out the possibility that it, or any government, may in future decide to undertake such approvals processes.

As I said to the chamber before, these mechanisms within the act have effectively lain dormant throughout its history. It is not like this is an area that has been open to abuse. It is not like this is something that has handed powers over to state governments on a regular basis only to see them be abused—far from it. The Howard government, which brought the EPBC Act into law, the Rudd government and the Gillard government—or whatever the government is going to be known as tomorrow—have always basically kept the powers to themselves. There is no need for legislation that bans the referral of those powers because there has effectively been no use of those powers. They sit there as an option—an option, however, that is important, an option that the government itself argued was the right thing to pursue and an option that the Hawke review argued, in its recommendations to the government, was the right thing to pursue.

The coalition have a particular concern of our own in this regard. That is because in April 2012 the coalition committed to offer state and territory governments the opportunity to act as a one-stop shop for environmental approvals as well as seeking to create a single lodgement and documentation process for environmental approvals should we win the election later this year—whenever it may be held, under whichever Labor leader it may be held. The coalition have given a commitment that we want to use bilateral approvals powers. We want to negotiate sensibly with the states and we want to ensure that absolutely, definitely, there is no undermining or watering down of environmental standards. National matters of environmental significance as legislated for in the Environment Protection and Biodiversity Conservation Act should of course be upheld and upheld to the right and proper standards that the Commonwealth government would expect. But, as Senator Conroy has already made clear, the assessment processes are largely happening at a state level. Senator Conroy basically said, in the earlier part of this debate, that in relation to this proposed new trigger the information would go to the states and that would be all that the Commonwealth needs, and, if the state ticked it off, you could expect that the Commonwealth would tick it off as well. That not only highlights the duplication that is being created through the passage of this bill but it also demonstrates very clearly that you could get great efficiencies in the operation of the EPBC Act—perhaps in this area, perhaps in other areas, definitely in some areas—by making greater use of these approvals mechanisms and bilaterals mechanisms.

The coalition is gravely concerned by the government's decision to adopt measures and to support amendments that tie their hands and tie the hands of future governments if they want to improve the efficiency of the EPBC Act, if they want to ensure that the duplication that occurs in assessments and approvals at Commonwealth and state level is minimised as much as possible. We think it is an outrage, to be frank, that the government have supported amendments that not only limit the use of these powers but fly in the face of what the government themselves had said they thought should be undertaken less than a year ago. Less than a year ago, your policy was effectively to do the same sorts of things that our policy promises to do. Less than a year ago, your policy was to make use of the provisions in the EPBC Act that you now seek to limit the use of. So, within the space of a year, your policy has been reversed completely, to the point where you now want to partly outlaw that which you as a government proposed previously to do.

The government has given far from adequate explanations as to what drove its reversal of the opinion, but we can simply assume that it was driven once again by the base political motive of keeping the Independents—in particular Mr Windsor, the member for New England—happy in this regard. That is no way to make good legislation. That is no way to govern the country. It is a crying shame the way this government has approached this important matter of our environmental laws and how they interact with the states and territories.

This is not a hypothetical conversation. This is not a conversation or a debate or a discussion that is just talking about things that might happen. This is a conversation about real costs that are incurred by real businesses that flow through into the competitiveness of the Australian economy and Australian industry more generally. One of the great battles Australian business is having at present is to remain competitive on the world stage. One of our great challenges at present is to see how Australian business is going to maintain areas of competitive advantage in the face of a higher Australian dollar, in the face of higher costs and taxes, like the carbon tax, and in the face of higher regulation, particularly with the extent of the red and green tape that exists across government nowadays.

Deloitte Access Economics undertook a cost-benefit analysis of reforms to environmental impact assessments under the EPBC Act. Their analysis estimated the benefit from reduced delays at $135.1 million in 2012-13, increasing to $288.4 million in 2020-21. In net present value terms, this represents a total gain to society of $1.19 billion. So there are real costs arising out of the cross-jurisdictional duplication in our environmental regulation.

It is outrageous that this government not only wants to ignore the advice provided to it by its own expert review, the Hawke review, and to overturn its own policy position as set out in the government response—which recommended greater use of these approvals processes—but also wants to go so far as to support the passage of legislation which actually prohibits and limits the use of these approvals processes. I implore the government to reconsider its position on the Windsor amendments passed in the House. Everybody knows the government supported them on a whim. Everybody knows there was very little, if any, consultation within government ranks about supporting Mr Windsor's amendments. Everybody understands that there are people within the government who, thankfully, have a higher level of common sense, who understand what the impacts on industry will be and who wish the government had not supported those amendments. This is the government's chance to right that wrong and remove those amendments from the legislation.

Jan McLucas (Queensland, Australian Labor Party, Minister for Human Services) Share this | Link to this | Hansard source

The government does not support the proposed amendments. I indicated earlier why this particular amendment would not be a sensible course of action. The government has brought forward this amendment bill after the failure of some states to satisfy the community about the rigour of their assessment and decision-making processes. We remain supportive of the provisions of the bill which ensure that states cannot be delegated the capacity to make decisions under national environmental law about water resources.

I reiterate: while there is widespread understanding of the standards which have to be met in decisions about other matters of national environmental significance, this is a new matter of national environmental significance. Before we seek to delegate such powers, it is important that we develop standards through mechanisms such as the scientific committee. Given the high levels of community concern about this matter, it is also important to maintain stronger control over where the decisions are made to approve such projects.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

I support the comments Senator McLucas made about the special scientific committee, but the unfortunate thing about this bill is the fact that the government, having set that committee up—and set it up with the support of the coalition—has now largely ignored it. What is the point of approaching and getting the concurrence, agreement and input of a panel of experts—people the community, the states and federal parliamentarians would accept the views of—only then to ignore them and to turn around and say, 'There is absolutely no value in the contribution they have made'?

The scientific committee were tasked with the responsibility of consulting widely and of examining overseas circumstances—we know that in the United States and other countries there are concerns about coal seam gas and the deeper shale gases. That is what they were asked to examine, to give consideration to as a panel of expert scientists, and to come back and report to parliament on. They were also asked to report on whether or not they had the concurrence, the sympathy and support of the community and of the states and territories. Their report would then provide the basis for decisions.

As my colleague Senator Birmingham has said, it is the issue of duplication which has caused so much grief amongst our colleagues at state level and amongst those in industry and business. This country is now competing with all other nations—developing countries and developed countries alike. We are in a world of strong competition, with finance moving around the world to pursue the best opportunities. Increasingly, we are falling off the pace—because Australia is no longer regarded as a safe place to invest.

As I said in a contribution earlier this afternoon, every Australian wants to make sure the environment is well protected. We want to make sure that there are no ill effects on residential areas from coal seam gas exploration or extraction. We want to make sure that those who are competent to look at these issues are tasked with doing so. But we must then offer them the courtesy of actually taking notice of what they say.

As has also been mentioned in a contribution to this debate, when the Senate committee met we had people speaking about the Hawke review of the act, saying that, regrettably, the government, having commissioned the review—I believe, Senator Birmingham, with the support of the coalition—then largely cherry-picked the limited areas in which they would actually accept recommendations and largely ignored the areas in which they would not. We have seen this so often with this government, in so many other areas. The Henry tax review is the first one that comes to mind on which eminent Australians did an enormous amount of good work, only to be insulted by having most of their recommendations ignored. Unfortunately, we seem to be seeing the same thing again here.

It is the duplication of efforts that we must try and avoid. The Prime Minister herself, in her contribution on this matter, spoke of avoiding state and federal duplication when it comes to environmental and other assessments, yet she has led and allowed a process which will do exactly that. More regrettable is the fact that the government has reversed its own position. As indicated by Senator Birmingham in his original contribution, the government has reversed its own position on a whim, as a result of the member for New England, Mr Windsor, who came along for his own shallow political purposes and influenced the government to change its position. That is not good enough, in my view. It is not good enough, and I firmly believe, Senator McLucas, that the government which you are representing in this debate must take on board the amendments that have been suggested. We must get this bill to a stage where it will be good law rather than skewed law.

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

I thank Senator Back for his contribution. I think it is important that the chamber consider the strange inconsistencies that the application of the provisions that the opposition is seeking to excise from the legislation will put in the EPBC Act, because the EPBC Act already has quite detailed conditions for the making of bilateral agreements and the prerequisites for making them. They are outlined in the EPBC Act under subdivision B of division 2 of part 5 of chapter 3. These are quite detailed prerequisites that were put in place, some more so than others. But I think, once again, what these demonstrate—and I will go through them in a moment—is that the government's bill was just a rushed job. If the government had presented to the House of Representatives a complete package that had the appropriate prerequisites for striking bilateral agreements, then we would be looking at something that reflected the rest of the EPBC Act.

Currently, within the EPBC Act, section 51 covers how bilateral agreements relating to declared World Heritage properties might be struck. Section 51A contains the process for how agreements relating to natural heritage places can be struck. Section 52 details exactly how agreements relating to declared Ramsar wetlands can be struck. Section 53 deals with agreements relating to listed threatened species and ecological communities. These sections contain quite stringent conditions and provide examples of how the government could have set out a formula or process by which agreements relating to the water trigger could equally have been struck. Let us have a look at what a good model might look like. Section 53 states:

(1) The Minister may enter into a bilateral agreement containing a provision relating to a listed threatened species or a listed threatened ecological community only if:

(a) the Minister is satisfied that the provision is not inconsistent with Australia's obligations under:

  (i) the Biodiversity Convention; or

  (ii) the Apia Convention; or

  (iii) CITES; and

(b) the Minister is satisfied that the agreement will promote the survival and/or enhance the conservation status of each species or community to which the provision relates; and

(c) the Minister is satisfied that the provision is not inconsistent with any recovery plan for the species or community or a threat abatement plan; and

  (ca) the Minister has had regard to any approved conservation advice for the species or community; and

(d) the provision meets the requirements (if any) prescribed by the regulations.

I read this into the Hansard because often in these debates, when people talk about agreements and powers of referral with the states, they make it sound like it is just being handed over to the states and whatever happens happens from there, but there are actually very tight conditions in place. In fact, they are far tighter than in section 53(1), which I just read, because section 53(2) provides even more prescriptive conditions:

(2) The Minister may accredit a management arrangement or an authorisation process under section 46 for the purposes of a bilateral agreement containing a provision relating to a listed threatened species or a listed threatened ecological community only if—

the minister can only enter into such an arrangement if—

(a) the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with Australia’s obligations under:

  (i) the Biodiversity Convention; or

  (ii) the Apia Convention; or

  (iii) CITES; and

(b) the Minister is satisfied that the management arrangement or authorisation process will promote the survival and/or enhance the conservation status of each species or community to which the provision relates; and

(c) the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with any recovery plan for the species or community or a threat abatement plan; and

(d) the Minister has had regard to any approved conservation advice for the species or community.

So there are extraordinarily strict and challenging criteria that the minister must satisfy before such accreditation processes or bilateral agreements can be entered into. As I said, section 53(2)(b) states that the minister can enter into such an arrangement only if they believe it will 'promote the survival and/or enhance the conservation status of each species or community to which the provision relates'. These are incredibly tough, and they continue in section 54, for agreements relating to migratory species, and in section 55—and I note that I was wrong in an aside I made before: agreements relating to nuclear actions are covered here, although covered in the negative sense, where:

The Minister must not enter into a bilateral agreement, or accredit for the purposes of a bilateral agreement a management arrangement or an authorisation process, containing a provision that … relates to a nuclear action …

So they are covered in the legislation but covered in a way that does specifically exclude nuclear actions. That is the one action that is excluded, until of course we have Mr Windsor's amendments. I highlight and detail how this section of the act works because often it is criticised, when people talk about using this section of the act, as a throwaway of responsibility to the states. Clearly it is far from it. Clearly they are very specific conditions that can be put in place. I highlight it because, if the government were serious about its new water trigger, we would have in the legislation before us a similarly detailed list of conditions under which the trigger could be assessed by state governments, but they would be conditions that would be very tough. Obviously, as I have said before in relation to the coalition's position on these matters, it is critically important that these matters of national environmental significance are upheld and the Commonwealth government of the day, whatever their political stripes, should be working to make sure they are upheld. We believe the best way to do that is to ensure that you have efficiency, that you eliminate duplication, but you ensure in regard to the referrals that could occur that you spell out the conditions and allow the system to work as seamlessly as possible.

The minister said in response to my comments before that, because this is a new matter, a new trigger, in the first instance it is appropriate to work through the relevant issues 'before we seek to delegate such powers'. They were the minister's words the last time she spoke. That would imply that the government believes there is a possibility to delegate such powers. In response to acknowledging that possibility, I would like the minister to explain to the Senate under what time line does the government believe it is appropriate to consider the delegation of such powers? Is it a fixed number of years? Is it a fixed number of controlled actions to be considered? How will the government decide when it is appropriate to consider the delegation of such powers? Why is it that the government still thinks, given it has abandoned that delegation elsewhere, that it may wish to delegate these powers? And importantly, why is it, if the government foresees a day when it might wish to delegate such powers, that it ties its hands behind its back today? It is nonsensical.

In any other area of the EPBC Act, except for the nuclear issues, the government could delegate such powers—it already could. Without the provisions which the coalition is seeking to remove from the bill before us, the government, when it decides at whatever point down the track it is appropriate to delegate such powers in relation to the water trigger, would be able to so negotiate. Instead, the government has tied its hands behind its back. When will the government be in a position to consider such delegation? Why is it specifically excluding the powers to be able to do so? Why has it not brought to the Senate provisions like those in section 53 or section 54 of the existing act, to spell out how such delegations could work in the future, so that we consider these matters in totality rather than find ourselves in a situation where the government is simply engaging in what appears to be a politically convenient act—politically convenient in terms of doing the deal with Mr Windsor, as well as being politically convenient in terms of trying to restrict the way the coalition may be able to enact its policy, should we win the election later this year, and try to pursue the application of a more efficient, more streamlined process for environment approvals which can be done in a way which maintains standards but reduces the costs facing industry? Minister, please enlighten the Senate when you say in the first instance, before we seek to delegate such powers, what is the type of time line the government is looking at and why is it that the government has in mind that it may delegate such powers, yet is excluding the provisions to do so. Indeed, what type of provisions would you expect to put in place to allow the delegation of such powers at a future juncture?

Jan McLucas (Queensland, Australian Labor Party, Minister for Human Services) Share this | Link to this | Hansard source

Senator Birmingham's contribution absolutely makes the point that I am trying to make. I am going to go through it very slowly. I will read the paragraph I have now read into the Hansard for I think the third time. While there is a sound understanding of the standards to meet in decisions with regard to other matters of national environmental significance, other matters like World Heritage listing, Ramsar wetland matters, matters relating to threatened species and ecological communities, you said strict criteria must be adhered to, that there needs to be strong standards for use of bilateral provisions. We understand that because we understand those environmental processes. We understand the protections that are required. There are international treaties—you referred to CITES yourself

We know what we need to do when it comes to threatened species. We know what the provisions are. This is an emerging piece of regulatory response that we need to have to coal seam gas and large coalmines. That is why we cannot delegate those powers—because we do not have the standards. This is a new matter of national environmental significance and it is important that, in the first instance, we develop the standards. You said that we need to spell out the conditions. We need to develop those standards so that we can spell out those conditions through mechanisms such as the scientific committee before we seek to delegate these powers. These are new and emerging environmental situations that we need to better understand before delegation can occur. I really hope I have made it plain.

The second question is: what types of conditions would we require? We need to develop them. It is a hypothetical question. Your last question was: what time line would there be? Again, that is hypothetical. This is an emerging area of environmental protection that needs to be provided here in Australia. We need the expert scientific committee to do the work that Senator Back referred to. I do not accept Senator Back's assertions about the way our scientific committee is being used; it is being used well. We respect them and we know that we need that advice from them.

But, really, Senator Birmingham, this is different from world heritage. It is different from threatened species. It is different from threatened ecological communities. And we need a different approach.

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

I thank the minister for her answer, although it does beg the question: if it is so different, if it is so in need of a different approach, if it is such an issue where it was clear that such agreements should not be entered into, then why was that not in the government's original legislation? Why did it require Mr Windsor to bring it to the government's attention? Why is it that these matters simply came about in the dying stages of the debate in the House of Representatives? It is convenient, I would say, for the government to now argue that there is a whole different set of circumstances that apply in this area and that it is not able to put in place appropriate conditions and standards as to how assessments and approvals could be undertaken. It is convenient in the extreme, because this was not the government's approach. This was not their policy. This was an acquiescence to Mr Windsor in the dying stages of the debate on this bill in the House of Representatives.

So I accept and understand the arguments that the minister is making, but, when you look at the reality of the sequence of events in the evolution and development of this bill, and when you look at the changes and the amendments that were put in place in the other place, it is quite clear to any observer that this has come about not because the government foresaw a particular need for it but because it very clearly was the case that the government was giving in, giving ground, to Mr Windsor at that time. That is the government's right. That is the way this government has operated for much of the last three years—doing deals on the side with different crossbenchers to keep them all happy. This was the deal that had to be done in this instance to keep Mr Windsor happy. It also had, of course, the convenient political side effect of creating a difficulty, potentially, for the opposition when it comes to implementing our policy, should we win the next election.

So there are political pluses on all sides, and good luck to the government in that regard if they managed to take advantage of those political opportunities that presented themselves to the government. But when you look at the types of conditions that are put in place in the existing referrals powers in the EPBC Act, and what could have been put in place in relation to the water trigger, there is no doubt that you could have had similar types of conditions put in place. You could very easily have had similar types of provisions put in place that ensured that, where a bilateral agreement was entered into, whether state and territory, it only was entered into if the minister was satisfied that the impact and the assessment on water resources was to be improved by the undertaking of such assessment and approvals by a state or territory.

You could have put that type of condition in place because, frankly, you would start with the confidence of knowing that the skill set, the knowledge and the systems are already in place in most of the states and territories to have a high level of approvals understanding and assessment understanding when it comes to looking at these types of developments because they have been doing them for some period of time, because they, like the Commonwealth, are equally informed of the findings and views of the independent expert scientific committee. That committee is not an exclusive committee of advice to the Commonwealth; it provides its advice just as freely on equal terms to the state governments, which will be just as well informed in the future, with or without this legislation, by that committee under the terms of its establishment by the parliament.

So there could easily have been the types of conditions that we see in relation to the other matters of national environmental significance developed and applied and imposed in the legislation to set a standard for referrals as to this new trigger. The government overlooked it. The government decided not to provide such potential referral powers or conditions, but, equally, did not seek originally to ban them, either. It is just a convenient argument to come along later in the piece having done so on the whim of an Independent and then say, 'We had to do so because it was new, because it was different, because we do not have the information or the evidence yet.' That just does not stack up.

Again I come back to the overarching point of this: these provisions, the provisions in section 53 that I read out at length to the chamber before, have never been used. Never have they been used, but the capacity to use them exists in the act for a time when a government believes it can meet those conditions and can manage to get the right environmental and efficiency outcomes in terms of the application of environmental legislation.

There is no reason as to why the standards—yes, they are broad in their nature—could not have been developed to a similar standard to those that are in the bill, in terms of having confidence that water resources will be protected and having confidence that proper processes of assessment are being undertaken. They are not highly technical standards that are put in place; they are standards, however, that exist to provide a benchmark and a threshold for the minister to clear. That is for the minister to have complete confidence that the state is doing its job, as well as the minister would expect, and the good officers of the Commonwealth department are doing their jobs.

Now, I understand that the government clearly is not about to recognise that it erred in accepting the Windsor amendment in the House of Representatives. They are clearly not about to back down in relation to this matter. That is a great disappointment. I would have hoped that the voices of common sense within the government would have been heard and would have made their views known. I know that some of them have, from those that have communicated that to the opposition. They have expressed their concern about this anomaly that we are now putting into the EPBC Act, where we are treating this different area of the act in a completely different way when it comes to how approvals and assessments could occur.

But, ultimately, in the government's rejection of the coalition's amendments here and the government's rejection of our invitation to correct their errors the House of Representatives, the real concern comes back to the cost impact that it has on business and on industry. That potential total gain to society—were we to manage to reduce delays, to reduce duplication and to ensure that we can have a better streamlined operation of our environmental laws—from the Deloitte Access Economics' report was $1.19 billion. That was solely looking at the existing areas of the EPBC Act. Because, when that cost-benefit analysis was done in 2011, this legislation was not even foreseen. This legislation was not even really foreseen in 2012. This legislation came about as an absolute last-minute dash by the government simply to make some difference in this regard.

The cost that comes from these measures, like the measures that the coalition is seeking to have removed from this bill, is a real cost. It is a real cost to the industry and it is a real cost to the competitiveness of Australian business. It is a real cost, therefore, to the number of jobs and opportunities that ultimately exist in Australia. Because every time we lay another level of red or green tape across industry, we know—from that day on—that it makes Australia that little bit less competitive when it comes to attracting investment and when it comes to growing business opportunities here.

We know from the earlier stages of this debate, and from the estimates questioning that was undertaken, that we saw some $38 million of costs recognised in the budget, purely for the administration of this bill that is before us tonight. That is, purely for the administration of Environment Protection and Biodiversity Conservation Amendment Bill 2013. It is only 17 pages. In legislative terms and in terms of the weight of things that come through this place, it is a rather meagre level of legislation. But its impact and its cost is real. Its cost to the government, just to administer it, is $38 million over the forward estimates. That is a very real cost for taxpayers to have to wear and for the government.

It comes at a time of great budgetary stress, as we all know, and comes from the government that has failed chronically to meet any of its budget forecasts. It has chronically overspent; it has run the biggest record deficits in Australian history. It is a government that has a very sad fiscal and budgetary legacy to its name; $38 million just over the forward estimates to administer these 17 new pages of legislation, and 50 new Commonwealth public servants are required to be employed to administer these 17 pages of legislation. It is a reminder that the decisions we make in this place have a real impact.

When we go to the Public Service, whichever the government of the day is, and say to them, 'We need to squeeze another efficiency dividend out of you. We need you to do things with less money,' the public service rightly often responds to the minister of the day and says, 'But we have all of these statutory requirements that we have to fulfil.' Parliament passes the laws and somebody has to implement them. Those somebodies are the good and hardworking people of the Commonwealth Public Service.

So when we pass legislation like this, we need to know that it comes at a very real cost. But it is not just a cost to the taxpayer and the government in terms of administration—though that is real—it then multiplies through the economy. The concern in this case is that we have cost multiplication happening at both a state and a federal level. The states have long had environmental approvals laws—particularly in relation to mining developments, which are developments like those covered by this bill. Large coalmines have always had to clear state environmental hurdles. Coal seam gas development activities have always had to clear state environmental development and assessment hurdles.

These are very clear legislative hurdles that have had to be cleared for a long time and for all of these sorts of projects. That is forever, essentially, when it comes to coal seam gas development. We are now applying a very specific additional layer of federal legislation on top of that. Now, it is a prerogative of this parliament to do so, but we should do so with our eyes wide open and know that there is a level of duplication that occurs from that. So, therefore, we have not just one set of costs imposed on the industry, but two sets of costs imposed on the industry.

Provisions exist elsewhere in the EPBC Act to try to bring those two sets of costs back to one, by virtue of referring those Commonwealth powers to the states. Those provisions should be replicated and should continue to be available in relation to this new trigger, so that when a government decides—through the proper processes of working with the states—that it is physically possible and that it is possible within all the terms of the legislation to reach an agreement with the states—as the Prime Minister, Ms Gillard, had promised to do last year—and refer some of these approvals processes to the states, the power exists and the way in which to implement it is there. Ms Gillard previously said it could be done; sadly, she abandoned that mission. But that is not to say that a future prime minister will not be stronger in their resolve to reach an agreement with the states. That is why these provisions inserted by the House of Representatives should be removed. I would urge the committee, and the government, to reconsider its support for these provisions in the bill and to support the opposition's motion to have them removed.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

We are dealing with opposition amendments (1) to (3) on sheet 7382. The question is that items 3A, 4A and 4B of schedule 1 stand as printed.

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

Senator Waters, we have about five minutes left. Do you wish to move your amendment or wish to speak?

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

Thank you, Chair. Just to give Senator Birmingham a rest after that long stint on his feet.

Honourable Senators:

Honourable senators interjecting—

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

He deserves a medal. He really does. I move Greens amendment (1) on sheet 7375:

(1) Schedule 1, page 8 (after line 4), after item 6, insert:

6A After section 131AB

  Insert:

131AC Minister must be satisfied that owners and occupiers of land have consented etc.

(1) This section applies to the taking of an action if a provision of Subdivision FB of Division 1 of Part 3 is a controlling provision for the action.

(2) The Minister must not approve, for the purposes of the controlling provision, the taking of the action, unless the Minister is satisfied that any owner, and any occupier, of land that would be likely to be affected by the taking of the action:

(a) has obtained independent legal advice; and

(b) has obtained independent advice in relation to the likely impacts of the taking of the action; and

(c) has freely given informed consent in relation to the taking of the action.

on sheet 7375.

This amendment goes to whether or not landholders have the right to say no to coal seam gas on their land—a matter which has often occupied the opposition's minds, although, sadly, it appears that they like to change it more than they like to keep it. This amendment once and for all will give both sides of the chamber the chance to put on record their actual views on this matter, though not of course Senator Joyce, who I note has a pair to attend Q&A rather than talk about coal seam gas, which folk are no doubt very interested to know.

For the benefit of folk in the chamber this amendment would give landholders the right to say no. Earlier I questioned the minister about its constitutionality and was unsurprised to have it confirmed that, yes, indeed, it is a constitutional amendment. Effectively this would preclude the minister from approving coal seam gas unless a landholder had both obtained legal and scientific advice and had then freely given consent to the coal seam gas or coalmining occurring on his or her land.

This is not only a means of better empowering communities with appropriate information as to the genuine risks to their land from coal seam gas and coalmining, but it also then empowers them to say no to coal seam gas. Importantly, this does not change the ownership of the resource, as the opposition likes to go on and on about. It is very clear that this amendment does not affect the ownership of the resource. Should any government, be it Commonwealth or state, wish to acquire the land to access the resource, they can do that using standard acquisition powers. That has been a bit of a red herring in the debate that I am happy to put to bed—to mix metaphors in a most inappropriate way.

Moving on, the amendment is clearly constitutional. Clearly it does not change the ownership of the minerals. I also want to note that the landholder rights requirement does not reduce any of the other requirements for environmental assessment of coal and coal seam gas. This certainly does not lower the bar. In fact, it basically gives landholders a bit more bargaining power. What we know is happening is that coal seam gas companies are essentially coming in, acting like cowboys, offering landholders a variety of money—either not much at all or an awful lot to shut them up, and the offer you get depends on your bargaining power. The confidentiality clauses that go along with those agreements mean that neighbours cannot talk about whether they are getting a good deal or a dodgy deal. So, nobody knows what a good price is.

And what price do you put on water supply? We have the National Water Commission and CSIRO both saying, 'We don't understand the long-term impacts.' I am afraid you cannot drink gas and you cannot eat coal. I suspect landholders, once they are in receipt of this scientific information and legal advice, will exercise that right to say no.

I want to put on record my thanks to all of the communities who have locked the gate against coal and coal seam gas and who have demonstrated that when communities stand together they can actually resist and protect their land and water. I think that is a great credit to them and gives me hope that community sentiment can win out despite the might of these big mining companies. Wouldn't it be nice if those people did not have to break the law to do so. Hence the genesis of this amendment.

I also want to take the unusual step of thanking Tony Abbott for the original idea for this amendment. He made a statement in August 2011, which he has occasionally repeated and many times back-flipped on, that landholders should be able to say no to mining companies. We welcome that. We would like him to go back to that very sensible original position, but, sadly, it seems that he is not able to hold that position for longer than 12 hours. No doubt, the folk who are in the members' dining room tonight— (Time expired)

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

Order! The time for this debate has expired.

Progress reported.