Coalition Senators' Dissenting Report

1.1The treatment of this bill is symptomatic of the attitude by Labor and the Australian Greens toward industries that access and develop natural resources in this country.

1.2First, the Australian Government and Green members of the committee refused to support public hearings relating to the bill. This was followed by a further undermining of the legislation by pushing the reporting date for the committee to beyond the last fortnight of sitting for 2024, meaning it could not be considered by the Parliament.

1.3The recommendation of the Labor/Green majority is not supported by the Coalition Senators.

1.4The Labor/Greens report largely ignored the substance of the views put forward by industry groups supporting what should be an uncontroversial amendment to the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). That is, that while providing a greater level of certainty to those who actually, and responsibly, access Australia’s natural resources to provide economic benefit to the nation, the EPBC Act still retains a mechanism for the reconsideration of decisions. It is therefore a disingenuous suggestion within the report that the bill removes any long-term reconsideration. That the submissions in support of the bill were so clearly overlooked and evidently dismissed speaks to a pattern demonstrated throughout this Albanese Government – that of failing to listen to Australians, investors, key industries and communities. The lack of certainty that the Government has created across sectors is keenly on display in this matter. Their abject refusal to adequately consult and engage with industry is increasing sovereign risk while removing confidence in investment in Australia. It is for these reasons this bill has received wide support, including from the renewables energy sector, from infrastructure and supply chains, from forestry and from capital intensive industries.

1.5It is of concern and notable that the majority report quotes evidence from the discredited Environmental Defenders Office (EDO). This activist lawfare group has been judged in the courts to have fabricated evidence in other EPBC Act matters. In January 2024, in the ‘Santos v Munkara’ case, Justice Natalie Charlesworth described the evidence provided by the EDO as ’distorted and manipulated’, in their failed legal bid to stop a critical energy project from progressing. Justice Charlesworth even went so far as to say the EDO’s evidence was ‘so lacking in integrity that no weight can be placed on them’.[1]

1.6The Australian reported last month that Federal Court documents revealed academic, legal and activist figures with the EDO exchanged emails and text messages coaching each other on how to use First Nations ‘Dreamtime’ stories to block gas company Santos’s Barossa project in the Timor Sea.[2]

1.7That the majority report relies heavily on contributions from the EDO and its affiliates to reject the proposed legislation extends beyond the realm of troubling. A sensible and practical piece of proposed legislation should not be dismissed based on questionable claims provided by an organisation that has conducted itself so dubiously.

1.8As the Explanatory Memorandum to the bill notes, the catalyst for this proposed legislation was the decision by the current Minister for the Environment and Water (the Minister) to reconsider a decision which had been made over a decade previously. The Australian Forest Products Association (AFPA) noted within its submission to the inquiry that:

…the recent decision to rescind an environmental approval in Tasmania after 11 years must send a concerning signal to the investment market.[3]

Actions that increase the uncertainty within the regulatory environment can only reduce the availability of investment capital, not least in medium to long term investment.[4]

1.9Again, in that circumstance, the current Minister has chosen to take the evidence of the discredited EDO in addition to one of their funding partner organisations – the Bob Brown Foundation[5] – in preference to that of the Tasmanian Government, who state in their submission to the Minister:

The Tasmanian Government’s position is that the 2012 decision should not be revoked and not substituted with a new decision. The primary grounds on which a reconsideration is not warranted are that:

While as was expected through the Adaptive Management Framework, there has been a continual stream of refined data and information generated over time – developing a continuously improving knowledge base and driving management responses – there is no “substantial new information” about the impacts that the action has, or is likely to have, on the Maugean skate and the Tasmanian Wilderness World Heritage Area; and

There has been no “substantial change in circumstances that was not foreseen” at the time of the 2012 decision relating to the impact the action has or will have or is likely to have. The 2012 decision specifically acknowledged the foreseen potential impacts through the measures of the particular manner (the manner in which proposed action must be taken), which are specifically designed to effectively manage impacts to the benthic environment (benthic visual, physiochemical or biological changes) and water quality (ammonia, nitrate and dissolved oxygen (DO)).[6]

1.10We should add that Minister Plibersek also decided – in a shock move, in November 2022 – to subject 18 coal and gas projects to reconsideration. That action likewise provoked substantial confusion and uncertainty for the affected companies, workers and local communities.

1.11Each of these circumstances reinforces the need for tighter legislation, less unpredictability, and for state jurisdictions to be central to any retrospective or eleventh-hour decision making.

1.12The tactic of using elements of the EPBC Act to disrupt and frustrate projects, continuously challenge and delay enterprises with the implicit intent of adding costs or making projects unviable, is a well-recognised one. As such, the Minister has created a further precedent for this green lawfare with the decision to review the approval for salmon farming in Macquarie Harbour. That precedent now applies to every type of approval granted under the EPBC Act.

1.13Those who have invested millions of dollars to achieve approval under the strict provisions of Australia’s environmental law should not be subject to uncertainty.

1.14It is unsurprising that Labor and Greens supporters fall on the side of discredited environmental activist groups in support of this unproductive environmental green lawfare.

1.15By contrast, the Coalition supports a balanced approach that aligns strong environmental protection with certainty and predictability for investors, particularly in order to allow them to deliver social and economic outcomes that will benefit Australia.As the Australian Airports Association submission states:

Introducing clear timeframes for reconsideration requests and limiting request to parties with a direct interest in a project will provide much-needed certainty for airport developments. This certainty is essential for ensuring Australia’s airports can meet future demand, drive economic growth, and support environmental sustainability.[7]

1.16That Senators support the passing of the legislation.

Footnotes

[1]Lisa Cox, ‘Environmental Defenders Office to pay $9m in costs to Santos over failed challenge to Barossa gas project’, The Guardian, 28 November 2024.

[2]Geoff Chambers, Paul Garvey, ‘Inside lawfare plot to block Santos’s $5.8bn Barossa gas project’, The Australian, 26 November 2024.

[3]Australian Forest Products Association (AFPA), Submission 12, p. 2

[4]AFPA, Submission 12, p. 4

[5]Saul Kavonic, ‘The Environmental Defenders Office’s foreign funders are undermining Australia’s economy’, The Advertiser, 8 December 2024.

[6]Department of Natural Resources and Environment Tasmania, Marine Farming Expansion, Macquarie Harbour, Tasmania and the Environment Protection and Biodiversity Conservation Act 1999 - not controlled action if undertaken in a particular manner referral decision (EPBC 2012/6406), February 2024, p. 5. Emphasis added.

[7]Australian Airports Association, Submission 21, pp. 3‒4.