Monday, 17 June 2013
Environment Protection and Biodiversity Conservation Amendment Bill 2013; In Committee
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.