Coalition Senators' Additional Comments
For a major piece of legislation that has sought to establish a
significant presence for the Australian Government in issues of environmental
protection and conservation the Environment Protection and Biodiversity Conservation
Act 1999 (EPBC Act) remains relatively new. This is especially so when
compared with the majority of similarly significant taxation, finance or legal
measures, though not unusual in the environment field.
Coalition Senators make this observation because we accept it
is important to review the ongoing effectiveness and efficacy of this
legislation. That occurred in 2006, when amendments to the Act were made to
address numerous areas of concern, and is happening again at this point in time
through an independent review of the Act (required at regular intervals under
section 552A of the Act) that was commissioned by the Minister for the
Environment, Heritage and the Arts, the Hon Peter Garrett AM MP, on 31 October
2008 and is due to report by 31 October 2009.
However, Coalition Senators are firmly of the opinion that such
reviews – particularly when conducted after just the first ten years of
operation and less than four years after significant amendments – and any
subsequent changes to either the Act or its implementation by the Government
must firstly focus on improving the operation of the Act to meet its
objectives, rather than significantly widening its scope or application. We
are strongly of the view that the more recent changes of 2006 should not be
overturned without clear evidence of their failure.
We also note a bias of viewpoint in the direction of this
report. While we recognise this is a critically important piece of
environmental legislation – indeed it was introduced by the former Coalition
Government – statements made in isolation about "whether reform might
result in better environmental protection outcomes" (paragraph 3.3 of the
majority report) without any mention of the potential to improve the operation
of the Act for applicants or proponents demonstrate a one-track focus. To
operate successfully in Australia's national interest this Act must be
Coalition Senators are supportive of some of the practical
recommendations made in the majority report of this Committee and welcome the
passionate contributions of the many witnesses who gave evidence to this
inquiry, but we believe that some other recommendations proposed would increase
the costs and complexity of the scheme whilst placing undue impediments on
development and economic investment within Australia. Accordingly, we have
addressed a number of the issues and recommendations contained in the majority
Objects of the Act
The majority report recommends that the words 'to provide for'
be deleted from sections 3(1)(a) and 3(1)(ca) of the Act. We note that the
majority of discussion on this matter centres on the case of Brown v
Forestry Tasmania and the interaction of the verb 'provides for' in both
the EPBC Act and the Regional Forest Agreements Act 2002 (RFA Act).
However, the committee decided to address the particular issues
of interaction between the EPBC Act and RFA Act in a separate report to be
provided to the Senate in April; a point that is detailed at 1.30 of the
majority report. Coalition Senators believe this recommendation pre-empts the
findings of this second report and reserve our position on this matter until
more fulsome consideration to this issue has been given.
In particular, Coalition Senators are concerned that the issues
that arise from Brown v Forestry Tasmania may relate more to the
effective enforcement of Regional Forest Agreements than any objects of the
EPBC Act. We would be especially reticent to see a situation where a
duplication of assessments, requirements or enforcements could apply to the
forestry industry across both the EPBC Act and RFA Act. These matters require
closer examination to avoid potentially costly consequences and deliver the
most effective environment outcome before the objects of the EPBC Act are
amended in the recommended way.
Recommendations 2 and 3 of the majority report propose further
consideration of new 'triggers' – impacts that would be considered as matters
of national environmental significance and therefore require assessment and
approval under the Act. Specifically, a greenhouse trigger and a land clearing
trigger are canvassed.
Coalition Senators are firmly against the imposition of a
'greenhouse trigger'. While we believe that every effort should be made to
reduce Australia's greenhouse emissions as rapidly as economically,
technologically and socially feasible, we do not believe that this is an
appropriate mechanism by which do so.
Considering the greenhouse emissions of just one project in
isolation is no way to manage or shape Australia's overall emissions management
and would be of less than negligible impact on global emissions, as identified
by the National Parks Australia Council:
even very large amounts of greenhouse emitted as a result of
any single action in Australia will be ‘a drop in the ocean’ on the world
Worse than this, Coalition Senators believe that the inclusion
of greenhouse emissions as a potential trigger for assessment under the EPBC
Act could prove to be a driving force in carbon leakage to other countries. It
is precisely at this stage of investment planning and approval that projects
will be most likely to consider development offshore, potentially in countries
where other policy parameters and business processes could lead to higher
levels of emissions than would have occurred in Australia.
The National Association of Forest Industries (NAFI) indicated
that such a proposal would result in undue complexity, when the Government's
primary greenhouse emissions reduction policies are being pursued through totally
Already the government's
objectives in relation to its obligations under the Kyoto protocol and its
eventual successor are being manifested in the CPRS legislation. To have a
trigger under the EPBC Act for yet another layer of examination, assessment and
approval between Minister Garrett and Minister Wong is not necessarily a
healthy situation in terms of efficient regulation.
Coalition Senators are more open to the arguments surrounding a
'land clearing trigger'. However, we would need to be convinced that the
inclusion of any such trigger would result in greater certainty for proponents
or applicants and not result in a reduction of access to existing prime
agricultural land. Any further consideration of this recommendation by the
Government must include appropriate consultation with all relevant
stakeholders, especially representatives of land users.
Compliance and Outcomes
Coalition Senators support Recommendations 4 and 5, especially
as they relate to investigation, compliance, auditing and enforcement measures.
To be relevant and apply equally across the community laws need to be
effectively policed and enforced. There is no point applying all manner of
conditions to an approval or accepting a range of undertakings if those
conditions or undertakings are never monitored.
For example, Coalition Senators themselves have been highly
critical of the proposed North-South or Sugarloaf Pipeline to convey water from
the Goulburn River to Melbourne, which itself was the subject of a conditional
approval by Minister Garrett last year. The water savings upon which the
Government assures us the operation of this pipeline are contingent, along with
other conditions imposed, must be properly audited and assessed to maintain
even the slightest modicum of community acceptance for this project.
Some improvements in this area of enforcement have been noted
at 3.30 of the majority report. However, more does need to be done to ensure
the expensive processes employed by all stakeholders to obtain approvals are
not wasted for lack of enforcement.
We also note the concerns highlighted in 3.23 of the majority
report from diverse stakeholders like the Australian Conservation Foundation
and the Minerals Council of Australia (MCA) that it is difficult to determine
whether the Act is "in fact delivering environmental protection
outcomes". Confidence in the long term benefits of the Act is important
and further assessments that provide more detail than that contained in the
2006 State of the Environment Report would be welcome to improving
confidence in the merits of the Act.
The range of powers and tools
The Act provides for a range of tools and mechanisms that can
be employed by government to achieve its objects, such as strategic impact
assessments, listing of threatened species and the preparation of recovery
plans, in addition to those aspects that specifically relate to the assessment
of individual projects. The majority report highlights a number of witnesses
who sought increased use of these measures, especially as they can be used to
address cumulative impacts, or criticised what they saw as the limited use of
them to date.
Coalition Senators hope that the independent review will give
more fulsome consideration to the merits of these measures, the impediments to
their effective deployment by the department, their impact on environmental,
economic and social outcomes and the proposals made by the majority report in
The diverse concerns of organisations such as the MCA,
Australian Network of Environmental Defender's Offices and National Farmers
Federation about the application of 'offsets' policies for habitat conservation
make the development of a clear policy in this area essential. Such an outcome
should improve the certainty for all stakeholders and, in doing so, minimise
costs and delays. However, Coalition Senators are unwilling to be as
prescriptive about the content of such a policy as the majority report is at
Recommendation 9 and would urge wide consultation with relevant parties prior
to its finalisation.
Coalition Senators welcome Recommendation 6. The risk of State
Governments operating in "the simultaneous roles of proponent and
assessor" as outlined in 4.10 of the majority report does have the potential
to undermine public confidence in the system established by this Act.
Currently the South Australian Government is undertaking
Environmental Impact Statements in regards to the construction of a weir near
Wellington towards the end of the River Murray and the possible admission of
seawater into the Ramsar wetlands of Lake Alexandrina and Lake Albert. The
South Australian Government is the applicant or proponent of these highly
controversial proposals and its suitability to assess their environmental impact
has already been called into question.
Commonwealth agencies and duplication
Coalition Senators also welcome Recommendation 7, which seeks
to address duplication concerns raised by the Commonwealth Fisheries
Association and the Australasian Fisheries Management Authority regarding the
duplication and lack of integration between the EPBC Act and the Fisheries
Management Act 1991. This is similar to the potential duplication that
Coalition Senators wish to avoid in relation to the EPBC Act and RFA's or other
Coalition Senators also recognise the specific concerns of the
Department of Defence in regard to adherence to the Act as a Commonwealth
agency. The repetition described by defence and the impact of
"prescriptive rather than performance based"
conditions on approvals warrant further inspection by both the independent
review and the Government.
Though not opposing consideration by the independent review,
Coalition Senators are concerned about the impact of expanding the scope for
merits review as suggested in recommendation 10 of the majority report.
It is clear from the majority report itself that decisions made
under the Act are often contentious and can infrequently, if ever, make all
It is clear from submissions
that stakeholders are sometimes dissatisfied with individual decisions.
Sometimes this is because they believe those decisions give insufficient weight
to environmental protection. In other cases, there are stakeholders
dissatisfied because they believe economic or social benefits were not given
This does make this area a potentially litigious one. Yet it is
also an area of policy that requires levels of certainty and timeliness. Coalition
Senators would encourage moves towards greater transparency in decision making
rather than avenues that could increase the potential for appeal and therefore
the delays that may be experienced.
Senator Simon Birmingham
Senator for South Australia
the Hon Judith Troeth
Senator Fiona Nash
Senator for New South Wales
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