Senate debates

Wednesday, 19 June 2013

Bills

Environment Protection and Biodiversity Conservation Amendment Bill 2013; In Committee

10:18 am

Photo of Larissa WatersLarissa Waters (Queensland, Australian Greens) Share this | Hansard source

by leave—I move Australian Greens amendments (1) to (3) on sheet 7376:

(1) Schedule 1, items 20 to 22, page 10 (line 26) to page 12 (line 28), omit the items, substitute:

20 Application

  (1) Except as provided by subitem (2), the amendments made by this Schedule apply in relation to an action involving coal seam gas development or large coal mining development that is taken on or after the day this item commences, even if the action began before that time.

  (2) The amendments made by this Schedule do not apply in relation to the taking of an action if, before 10 February 2013:

     (a) the Minister approved the action under Part 9 of the old law; or

     (b) the Minister decided under Division 2 of Part 7 of the old law that the action was not a controlled action; or

     (c) the action was specifically authorised in accordance with section 43A of the old law.

(2) Schedule 1, item 23, page 12 (line 29) to page 13 (line 14), omit subitem (1), substitute:

(1) This item applies if, immediately before the day this item commences, there was in force a decision of the Minister, under Division 2 of Part 7 of the old law, that an action involving coal seam gas development or large coal mining development is a controlled action, regardless of:

  (a) whether the taking of the action has been approved by the Minister under Part 9 of the old law for the purposes of a provision of Part 3 of the old law (unless subsection 20(2) applies to the approval); and

  (b) whether advice has been obtained from the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development in relation to the action.

(3) Schedule 1, page 17 (after line 1), after item 24, insert:

24A Requirement for assessment of impacts of certain actions

  (1) If, on or after 14 September 2010, the Minister approved the taking of an action involving coal seam gas development or large coal mining development, the Minister must assess the relevant impacts of so much of the action as has been taken before this item commences.

  (2) For the purposes of assessing the relevant impacts, Part 8 of the old law applies as if:

     (a) section 24D or 24E had been a controlling provision for the action; and

     (b) the Minister were required to complete the assessment no later than 12 months after the day this item commences.

  (3) No later than 13 months after the day this item commences, the Minister must publish a report in relation to each action assessed under this item, setting out the relevant impacts of the action on the matter protected by the controlling provision.

By leave, I will also move amendment (1) on sheet 7374 and amendment (1) on sheet 7394 together but the questions will be separately put. I move amendment (1) on sheet 7374:

(1) Page 17 (after line 13), at the end of the Bill, add:

Schedule 2—Preventing the Commonwealth from handing to a State or Territory responsibility for approving proposed actions that significantly impact matters protected under the Environment Protection and Biodiversity Conservation Act 1999

Environment Protection and Biodiversity Conservation Act 1999

1 Paragraph 11(a)

Omit "a bilateral", substitute "an".

2 Division 1 of Part 4

Repeal the Division.

3 Paragraphs 44(c) and (d)

Omit "and approval" (wherever occurring).

4 Subparagraphs 45(2)(a)(iii) and (iv)

Omit "and approval" (wherever occurring).

5 Section 46

Repeal the section.

6 Subsection 47(4)

Omit "but the action must still be approved under Part 9".

7 Subsection 48(3) (heading)

Repeal the heading, substitute:

   Relationship with section 47

8 Subsection 48(3)

Omit "sections 46 and", substitute "section".

9 Subsection 48A(1)

Omit "46 or".

10 Subsection 48A(1)

Omit "(2) or" (wherever occurring).

11 Subsection 48A(1)

Omit "(as appropriate)".

12 Subsection 48A(2)

Repeal the subsection.

13 Subsection 51(1)

Omit "(1)".

14 Subsection 51(2)

Repeal the subsection.

15 Subsection 51A(1)

Omit "(1)".

16 Subsection 51A(2)

Repeal the subsection.

17 Subsection 52(1)

Omit "(1)".

18 Subsection 52(2)

Repeal the subsection.

19 Subsection 53(1)

Omit "(1)".

20 Subsection 53(2)

Repeal the subsection.

21 Subsection 54(1)

Omit "(1)".

22 Subsection 54(2)

Repeal the subsection.

23 Section 55

Omit ", or accredit for the purposes of a bilateral agreement a management arrangement or an authorisation process,".

24 Subsection 59(1) (examples 1 to 3)

Repeal the examples.

25 Section 64

Repeal the section.

26 Section 65A

Repeal the section.

27 Section 66

Omit "(It does not deal with actions that a bilateral agreement declares not to need approval.)".

28 Paragraph 77A(1A)(b)

Omit "relates; or", substitute "relates."

29 Paragraph 77A(1A)(c)

Repeal the paragraph.

30 Subparagraph 78(1)(ba)(i)

Omit "a bilateral agreement and a management arrangement or an authorisation process that is a bilaterally accredited management arrangement or a bilaterally accredited authorisation process for the purposes of the agreement", substitute "an agreement".

31 Subparagraph 78(1)(ba)(ii)

Omit ", or the management arrangement or authorisation process is no longer in force under, or set out in, a law of a State or a self-governing Territory identified in or under the agreement".

32 Subsection 82(2)

Omit "1,".

33 Subsection 82(2)

Omit "a bilateral", substitute "an".

34 Subsection 146(2) (note 2)

Omit ", or make a bilateral agreement declaring,".

35 Section 528 (definition of bilaterally accredited authorisation process )

Repeal the definition.

36 Section 528 (definition of bilaterally accredited management arrangement )

Repeal the definition.

I also move Australian Greens amendment (1) on sheet 7394:

(1) Page 17 (after line 13), at the end of the Bill, add:

Schedule 2—Further amendments

Environment Protection and Biodiversity Conservation Act 1999

1 After section 12

Insert:

12A Requirement for approval of activities with a significant impact on a National Park

(1) A person must not take an action that:

  (a) has or will have a significant impact on the environment within a National Park; or

  (b) is likely to have a significant impact on the environment within a National Park.

Civil penalty:

  (a) for an individual—5,000 penalty units;

  (b) for a body corporate—50,000 penalty units.

(2) Subsection (1) does not apply to an action if:

  (a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or

  (b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or

  (c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or

  (d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).

(3) A property is a National Parkfor the purpose of this Act if it is:

  (a) an area that is a National Park for the purpose of a law of the Commonwealth, a State or a Territory as at 17 June 2013, or is an area that becomes a National Park, or is added to an existing National Park, on or after that date; or

  (b) an area that is a nature reserve for the purpose of a law of the State of Western Australia as at 17 June 2013, or is an area that becomes a nature reserve, or is added to an existing nature reserve, on or after that date; or

  (c) an area that is declared under the National Parks Act 1975 of the State of Victoria as at 17 June 2013, or is an area that is declared under that Act, or is added to an existing area declared under that Act, on or after that date; or

  (d) an area that is land designated for conservation under Conservation, Forests and Lands Act 1987 of the State of Victoria as at 17 June 2013, or is an area that becomes land designated for conservation under that Act, or is added to an existing area that is land designated for conservation, on or after that date; or

  (e) an area that is a state reserve or a nature reserve under the National Parks and Reserves Management Act 2002 of the State of Tasmania as at 17 June 2013, or is an area that becomes a state reserve or a nature reserve, or is added to an existing state reserve or nature reserve, on or after that date; or

  (f) an area that is a reserve under the National Parks and Wildlife Act 1975 of the State of South Australia as at 17 June 2013, or is an area that becomes a reserve, or is added to an existing reserve, on or after that date; or

(g) an area that is a wilderness protection area under the Wilderness Protection Act 1992 of the State of South Australia as at 17 June 2013, or is an area that becomes a wilderness protection area, or is added to an existing wilderness protection area, on or after that date; or

  (h) an area that is a park or reserve under the Territory Parks and Wildlife Conservation Act 2006 of the Northern Territory as at 17 June 2013, or is an area that becomes a park or reserve, or is added to an existing park or reserve, on or after that date.

2 After section 15A

  Insert:

15AA Offences relating to National Parks

(1) A person is guilty of an offence if:

  (a) the person takes an action; and

  (b) the action results or will result in a significant impact on the environment of a property; and

  (c) the property is a National Park.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(1A) Strict liability applies to paragraph (1)(c).

Note: For strict liability, see section 6.1 of the Criminal Code.

(2) A person is guilty of an offence if:

  (a) the person takes an action; and

  (b) the action is likely to have a significant impact on the environment of a property; and

  (c) the property is a National Park.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(2A) Strict liability applies to paragraph (2)(c).

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) An offence against subsection (1) or (2) is punishable on conviction by imprisonment for a term of not more than 7 years, a fine not more than 420 penalty units, or both.

  Note 1: Subsection 4B(3) of the Crimes Act 1914 lets a court fine a body corporate up to 5 times the maximum amount the court could fine a person under this subsection.

  Note 2: An executive officer of a body corporate convicted of an offence against this section may also be guilty of an offence against section 495.

  Note 3: If a person takes an action on land that contravenes this section, a landholder may be guilty of an offence against section 496C.

(4) Subsections (1) and (2) do not apply to an action if:

  (a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or

  (b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or

  (c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or

  (d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).

  Note: The defendant bears an evidential burden in relation to the matters in this subsection. See subsection 13.3(3) of the Criminal Code.

3 Subsection 29(1)

After "or 24E", insert " or section 12A or 15AA".

4 Section 34 (after table item 1A)

Add:

5 After section 34BA

Insert:

34BB Declarations relating to National Parks

(1) The Minister may make a declaration under section 33 relating to a National Park only if:

  (a) the Minister is satisfied that the declaration is not inconsistent with Australia's obligations under the Convention on Biological Diversity;

  (b) the Minister is satisfied that the declaration is not inconsistent with Australia's obligations under any other relevant international environment convention which aims to protect the natural environment to which Australia is a party; and

  (c) the declaration meets the requirements (if any) prescribed by the regulations.

(2) For the purpose of this Act, the Convention on Biological Diversity means the Convention on Biological Diversity done at Rio de Janeiro on 5 June 1992.

6 After section 37D

Insert:

37DA Declarations relating to National Parks

The Minister may make a declaration under section 37A relating to a National Park only if:

  (a) the Minister is satisfied that the declaration is not inconsistent with Australia's obligations under the Convention on Biological Diversity; and

  (b) the Minister is satisfied that the declaration is not inconsistent with Australia's obligations under any other relevant international environment convention which aims to protect the natural environment to which Australia is a party.

7 Subsection 46(1)

After "or 24E", insert " or 12A or 15AA".

8 Subsections 46(2) and (2A)

After "or 24E", insert " or 12A or 15AA".

9 After section 51A

Insert:

51B Agreements relating to National Parks

(1) The Minister may enter into a bilateral agreement containing a provision relating to a National Park only if:

  (a) the Minister is satisfied that the provision is not inconsistent with Australia's obligations under the Convention on Biological Diversity;

  (b) the Minister is satisfied that the provision is not inconsistent with Australia's obligations under any other relevant international environment convention which aims to protect the natural environment to which Australia is a party; and

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

(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 National Park only if:

  (a) the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with Australia's obligations under the Convention on Biological Diversity; and

  (b) the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with Australia's obligations under any other relevant international environment convention which aims to protect the natural environment to which Australia is a party.

10 After section 137A

Insert:

137B Requirements for decisions about National Parks

In deciding whether or not to approve, for the purposes of section 12, the taking of an action and what conditions to attach to such an approval, the Minister must not act inconsistently with:

  (a) Australia's obligations under the Convention on Biological Diversity; and

  (b) any other relevant international environment convention to which Australia is a party which aims to protect the natural environment.

11 After section 146G

Insert:

146GA Approvals relating to National Parks

If the approval relates to a National Park, the Minister must not act inconsistently with:

  (a) Australia's obligations under the Convention on Biological Diversity; and

  (b) any other relevant international environment convention to which Australia is a party which aims to protect the natural environment.

It is my great pleasure to move these final amendments to try to strengthen these new water protections against coal seam gas and coalmining. The first amendment goes to the application of these new protections.

Whilst the Greens are thrilled that almost two years after we moved similar legislation to protect aquifers the government finally has done so themselves, we are concerned that in the interim all the big projects have already been approved. Sadly we know that Minister Burke has not rejected a single coal seam gas or coalmine application that has crossed his desk. I was particularly disappointed that, only several days after approving Gloucester coal seam gas and three big coalmines in New South Wales—Maules Creek, Boggabri and Tarawonga—suddenly the minister announced that he would belatedly move to protect aquifers with this new water trigger bill.

This first amendment goes to the fact that those four projects should be subject to these new water powers and those big companies should now have to look at the impact of water. The federal environment minister should be obliged to ensure that water impacts are able to be managed and, if there is any uncertainty, the minister should have the ability to reject those projects. As I say, given that work has not already commenced, we think this is a safe and sensible approach.

The other effect of this retrospectivity amendment goes to those earlier approved Queensland coal seam gas projects. Within several months of becoming the environment minister, Minister Burke ticked off on the first two big coal seam projects and, several months thereafter, the third big coal seam gas project. Given that the fourth one is yet to be approved, we need the benefit of information about the water impacts of those first big three before the decision on the final fourth one gets made. This amendment would not change the approval status of those big three—given that, unfortunately, it was granted many years ago and work has commenced—but it would ensure that water studies have to be done so that we know what damage is already being done and how much risk those aquifers are already facing before the minister decides whether or not to approve the fourth project, that being Arrow coal seam gas. So that is the genesis of those amendments.

The second tranche of amendments goes to the protections that the Greens think the federal government should keep for nationally important environmental assets. We have seen that this bill was amended in the House to make sure that this new water power cannot be given away to state governments. We absolutely support that; in fact, we were behind that amendment getting up. But what we have now seen is an admittance, a concession, that the state governments do not always do the best job in looking the after the environment. If there is acknowledgement that water is too precious to be trusted solely to the states and that we need federal oversight, then we think it is only fair that World Heritage sites of international significance receive the same attention.

Likewise, all those other elements that are currently protected by the EPBC Act—threatened species, Ramsar wetlands, migratory species, the Great Barrier Reef, and national heritage areas—are of national importance. It is a craven shame that, while we originally saw a Labor government protecting these areas 30 years ago through intervening in the Franklin Dam, we now see a Labor government proposing to give away those federal veto powers to state governments.

I want to set the record straight, because there has been a lot of confusion and rhetoric promulgated by the Business Council and its ilk. We have two stages of environmental approvals—assessment and approval. The Commonwealth has already accredited the state assessment processes, so any duplication that might have existed has already been dealt with and put to bed. There is now no duplication; there is simply no need for the Commonwealth to also issue an approval or a refusal decision. As we know, generally an approval decision gets made. Nonetheless, we still need that important veto power. So it is simply ridiculous to contend that there is duplication going on, which is why it is so crucial that the Commonwealth retain that final power to say no to things like mines in World Heritage areas or to clearing the last vestige of a threatened species habitat that would send a threatened species to extinction.

People need to know that the national environment deserves national protection, and that is certainly what all the polls on these issues are telling us. People want the federal government to be able to protect the environment; it is not a bizarre concept, and it has majority support. So this amendment would delete those parts of the act that allow those final protection approval powers to be simply given away to state governments. This amendment would stop Mr Tony Abbott's coalition, who have committed to using these powers to hand off federal environment approval powers, from doing so—unless, of course, they get control of both houses of parliament and change the laws again, and that is in the hands of the people. The point of this amendment is to make sure that Campbell Newman is not solely in control of Queensland's environment, nor Barry O'Farrell solely in control of New South Wales's environment, nor any of the other state premiers solely in control of national parts of our environment that are often internationally significant. We need that final veto power of the federal government against state governments, who have a history of approving development even though it would damage the environment.

The final amendment goes to protecting our national parks. It is along a similar theme. Unfortunately, we have seen state governments in recent months approving shooting in national parks. Never mind the safety concerns of families wanting to walk in those parks who might actually not want to be shot. Who would have thought they would rather have a picnic than be dodging bullets! We have also seen grazing approved, originally in the alpine region of Victoria, which was then overturned, and now in Queensland. We have had shooting and we have had grazing—and logging has now been approved by the Queensland government, and of course prospecting has just been approved by the Victorian state government, and there are plans to sell off Victoria's national parks.

So I am afraid national parks are under threat from the reckless actions of state governments. When we have less than four per cent of the country covered by national parks, why on earth can't they be off limits to logging, mining, grazing and shooting? Why can't we just protect those areas and properly manage them? It does not seem unreasonable to me.

This amendment would deliver on Minister Burke's commitment of almost two years ago that, sadly, has gone nowhere. Minister Burke originally said he would step in and protect national parks if state governments continued on their destructive agenda. They have done so. They have gotten worse and still the federal government has not acted. So this amendment clearly says: national parks should be given national protection. We urge both sides of the chamber to support it.

The federal environment minister has missed the deadline to act to protect national parks by regulation. If he does so move, we would encourage him to do so, but we would rather he support this amendment here and now, which will deliver lasting protection for national parks. If the minister simply moves to add national parks as a trigger to these laws by regulation, we know those regulations are susceptible to disallowance and we can expect that the opposition, in government, if they gain that honour, will in fact disallow them. The only way to guarantee protection for national parks is to support this amendment. So it is with great pleasure that I commend these amendments to the chamber.

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