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senate vote 2012-09-10#1
Edited by
mackay staff
on
2014-01-30 11:06:39
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Title
Bills — Environment Protection and Biodiversity Conservation Amendment (Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development) Bill 2012; in Committee- Environment Protection and Biodiversity Conservation Amendment (Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development) Bill 2012 - In Committee - Expertise of Committee
Description
<p class="speaker">David Feeney</p><p>I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill, and seek leave to move the two amendments to the bill together.</p><p>Leave granted.</p><p>On behalf of the government I move amendments to the Environment Protection and Biodiversity Conservation Amendment (Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development) Bill 2012:</p><p class="italic">(1)   Clause 2, page 2 (cell at table item 2, column 2), omit the cell, substitute:</p><p class="italic">(2)   Schedule 1, item 4, page 4 (line 30), after "qualifications", insert "or expertise".</p><p>These amendments will, firstly, change the date on which the provisions come into force to a single day to be fixed by proclamation. However, if the provision or provisions do not commence within the period of six months beginning on the day that this act receives the royal assent they will commence on the day after the end of that period.</p><p>Secondly, we are inserting the words 'or expertise' to clause 505C(5)(a) to clarify requirements with regard to expertise and qualifications for members of the committee. This will require the minister, when appointing members to the committee, to ensure that each member other than the chair possesses appropriate scientific qualifications or expertise that the minister considers relevant to the performance of the committee's functions.</p><p>These amendments are now required because (1) the delay in the legislation passing the Senate would otherwise create a requirement for requests for advice on proposed actions to be referred to the statutory committee retrospectively from 1 July 2012 onward, and this would unnecessarily delay project proposals already considered by the interim committee in July; and, (2), paragraph 505C(6), an amendment passed during consideration of the bill by the House of Representatives, stipulates that the minister must ensure that a majority of committee members possess scientific qualifications and expertise in relevant scientific disciplines. This new amendment will make 505C(5)(a) consistent with 505C(6) when read together, because reference to expertise as an employment requirement then exists in both paragraphs. The effect of this amendment will be to allow the minister to consider expertise gained through means other than formal scientific qualifications, for example, relevant experience, in appointing members of the committee.</p><p>We have consulted with the opposition in the preparation of these amendments and I commend these amendments to the Senate.</p> <p class="speaker">Richard Colbeck</p><p>I just indicate the opposition's support for those amendments. The opposition appreciates the consultation that the government has undertaken and also is cognisant of the need to change the dates around the commencement so that there are no issues around retrospectivity. It also appreciates the government's acceptance of opposition amendments in the other place and the clarifications that have been provided around those.</p><p>Question agreed to.</p> <p class="speaker">Larissa Waters</p><p>I have a number of questions for the minister. I will then, by leave, move some of my amendments. But firstly I am interested in the fact that this bill sets up a committee under federal laws to effectively advise state governments. Just having a squiz through the wording of the bill, I see there is nothing in the bill that compels the states to seek advice from this committee. The only compulsion is contained in the national partnership agreement on CSG, which of course has a $50,000 price tag attached to it if states agree to sign up. So my question is: was any consideration given to reflecting that mandatory nature in the actual bill itself? Secondly, can you please update us as to whether the states have indeed legislated for the need to consider this committee's advice?</p> <p class="speaker">David Feeney</p><p>I am advised that there is an agreement between the federal government and state governments entitled the national partnership agreement. Within the terms of that agreement, state governments are required by 30 September to identify a protocol as to how they are referring projects through to the committee that would be established by this legislation.</p> <p class="speaker">Larissa Waters</p><p>Can you clarify the enforceability of that agreement?</p> <p class="speaker">David Feeney</p><p>I understand that COAG will be undertaking a review of obligations that the parties have taken on under the national partnership agreement and that it would be enforced through COAG arrangements.</p> <p class="speaker">Larissa Waters</p><p>Do I take that to mean that the $50,000 will be withdrawn from states that do not comply with that time frame?</p> <p class="speaker">David Feeney</p><p>I think the sum you are referring to is $50 million rather than $50,000. Sums of $50 million have already been paid and others will be paid subject to the deliberations of COAG, and the review of the obligations contained in the partnership agreement.</p> <p class="speaker">Larissa Waters</p><p>Forgive me; I found your last response a little hard to follow. The $50 million will be 'reviewed' if the states do not meet that 30 September time frame; meaning that money will be subject to be brought back by the Commonwealth? I am just seeking to understand that process.</p> <p class="speaker">David Feeney</p><p>As I understand it, some of the $50 million has been paid and the remainder will be paid subject to COAG's review of obligations found under the national partnership agreement.</p> <p class="speaker">Larissa Waters</p><p>So, of the money that has already been paid, what mechanism is in place to ensure that those legislative amendments at the state level are made in compliance with that agreement, given that the money has already been paid?</p> <p class="speaker">David Feeney</p><p>Not all of the $50 million has been paid, so first let me clarify that. Second, there is an obligation on states to make legislative changes by the 30 September deadline. The protocol is that the legislative changes would need to be made with effect for next year.</p> <p class="speaker">Larissa Waters</p><p>Thank you. I am pleased to hear that there is perhaps some wriggle room in the nature of those amendments. The national partnership agreement terminology is that the states need to amend their laws in order to 'take account of' this committee's advice. I have some very firm views on how that term has been interpreted in other environmental laws, but this is obviously just a partnership agreement and not a law. Can the parliamentary secretary shed any light on his understanding of whether 'take account of' means 'comply with' or whether it simply means 'read and then shred if inconvenient'?</p> <p class="speaker">David Feeney</p><p>Unfortunately, I do not have any advice for the Senate on the meaning of that terminology.</p> <p class="speaker">Larissa Waters</p><p>Parliamentary Secretary, can you advise why that requirement to 'take account of' is not reflected in the bill before this place?</p> <p class="speaker">David Feeney</p><p>There has been a decision made about what is found in the legislation and what is found in the agreement, and it is the view of government that those arrangements are sufficient to meet the intent of the bill and the intent of government.</p> <p class="speaker">Larissa Waters</p><p>Thank you. So clearly the intent of government is to set up a committee which has no teeth, which can provide advice if requested by the federal minister—which he then cannot act on because he has no water power—and which may be requested by the states and then can be ignored. Is that accurate?</p> <p class="speaker">David Feeney</p><p>I do not think that was really a question, was it? Obviously that is your view or perspective on the proposition that is before the Senate. It is not the view of government.</p> <p class="speaker">Larissa Waters</p><p>Thank you. I certainly would have preferred to see a much stronger bill than the one before us. If the view of government and the intention of government were in fact different then perhaps they ought to have reflected that in the bill before us. But I would like to move now to a matter that I just alluded to, and that is the ability of the federal minister to even act on the advice given by this new committee. I refer specifically to proposed section 131AB, which is item 2 of schedule 1 of the bill. It is clear that the minister has to seek advice if he thinks there is going to be an impact on water resources, as long as there is also going to be an impact on a matter protected by part 3, which is a matter of national environmental significance. Does the parliamentary secretary understand that my interpretation is correct in that the federal environment minister still cannot act on this advice unless there is going to be an impact on an existing matter of national environmental significance, of which water is not one?</p> <p class="speaker">David Feeney</p><p>I am getting some advice for you on that, Senator, but I understand that it is broader than you have described it and that the minister has other triggers to act as well. But perhaps I will take that on notice.</p> <p class="speaker">Larissa Waters</p><p>With respect, it is a fundamental question. I would expect that the drafters of the bill are fully aware of the existing triggers in our environmental laws, as I am. Water is not one of them, and the whole basis of the bill is only enlivened if there is going to be a significant impact on one of those matters. My question is: is it correct to say that the advice of this committee will have no influence whatsoever over a minister's approval decision unless there is a matter of national environmental significance that is already protected by the act? That is, if there is a coal seam gas development, it will not matter a whit what this committee says because there is no water trigger in our environmental laws.</p> <p class="speaker">David Feeney</p><p>Looking at the relevant provision 131AB(1)(b) parts (i) and (ii)—</p> <p class="speaker">Bill Heffernan</p><p>I remember that.</p> <p class="speaker">David Feeney</p><p>I will now read it for the benefit of the senate, you will be thrilled to know, Senator Heffernan:</p><p class="italic">(b) the Minister believes that the taking of the action:</p><p class="italic">(i) is likely to have a significant impact on water resources; and</p><p class="italic">(ii) may have an adverse impact on a matter protected by a provision of Part 3.</p><p>I understand that those powers mean that the minister has a wider discretion than you are describing.</p> <p class="speaker">Larissa Waters</p><p>With respect, I would ask you to check with your advisers on that point. The whole purpose of having an adverse impact on a matter protected by part 3 is that part 3 only protects those matters from significant impact. Therefore, the threshold is not lowered from the standard test in the act. I would be thrilled to be corrected, but my understanding is there is still no power for the minister to act on this advice, even if the advice says there is going to be terrible impacts from coal seam gas or large coal mining, unless the impacts are on one of those listed matters of national environmental significance, of which water is not one.</p> <p class="speaker">David Feeney</p><p>I think it is also worth noting that sitting alongside this are the state referrals that go through the protocol, which means that state ministers, or for that matter territory ministers, can also take account with regard to state matters.</p> <p class="speaker">Larissa Waters</p><p>That did not really answer my question, but I think it does serve to illustrate that my understanding is correct. This bill sets up a committee to primarily advise the states who only need to take account of the advice according to an agreement—not this bill—and who can take account of and then shred the advice. The federal minister cannot act on it unless there is an impact on a threatened species, a Ramsar wetland, a migratory species, a nuclear reaction, Commonwealth waters or a World Heritage site. When will the government consider adding water to our environmental laws so that they can actually do something to protect it from coal and coal seam gas?</p> <p class="speaker">David Feeney</p><p>I do not have an answer to that question, Senator. The legislation is before you. I obviously take account of and note your critique of that legislation, but I am not in a position to comment about what future governments and future legislation might encompass or not encompass.</p> <p class="speaker">Bill Heffernan</p><p>Clearly, this is evidence—and I have studied this for a long time—of what I said earlier in the day, that this legislation would be good if it got the right set of teeth, but as it is it is designed, as the minister—not Minister Burke, another minister—said, to make sure the Commonwealth does not own the problem. That is all it is about. You can take as much advice as you like, but you do not have to act on it and the states can do whatever they like. Sure, we need the advice and, as Senator Colbeck has pointed out, we do not really know what is going on with the aquifer. It would be good if this brings forward some science, because the CSIRO does not even know. The CSIRO tells the Senate committee: 'It could take 400 years to rebalance the aquifer, but we do not really know. And we do not know why the Springbok and Walloon aquifers were contaminated and we do not know why those cattle—'. There is actually a bore drain south of Mount Isa that is running blue water, but they do not know why.</p><p>The one thing we do know is that the Commonwealth does not want to own the problem. This legislation could be good legislation if the Commonwealth accepted responsibility for the problem, but they do not. The responsibility for the problem is with the states and this legislation ensures it stays there.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>- The majority voted against the following [http://www.openaustralia.org/senate/?gid=2012-09-10.65.1 two Greens amendments] moved by Senator [http://publicwhip-test.openaustraliafoundation.org.au/mp.php?mpn=Larissa_Waters&mpc=Senate&house=senate Larissa Waters].
- The first amendment removes the exception contained in section 505C(5)(a) of the bill that says "each member (other than the Chair) possesses appropriate scientific qualifications that the Minister considers relevant to the performance of the Committee’s functions". This amendment removes the words "(other than the Chair)".
- The second amendment adds to the expertise that needs to be represented on the Committee created by this bill. Currently, there are four areas of scientific expertise that need to be included on the Committee:
- * geology;
- * hydrology;
- * hydrogeology; and
- * ecology.
- The amendment adds public health, which Senator Waters said would address "the huge concern in the community about both coal seam gas and large coal mining and their impact on community health".[1]
- Background to the bill
- The bill establishes an Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development ('the Committee')[2] to provide federal, state and territory governments with scientific advice on coal seam gas and large coal mining developments which may have significant impacts on water resources.[3]
- References
- * [1] Read the rest of Senator Waters contribution [http://www.openaustralia.org/senate/?gid=2012-09-10.65.1 here].
- * [2] Read more about the Committee [http://www.environment.gov.au/coal-seam-gas-mining/ here].
- * [3] See [http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r4778 here] for explanatory memoranda and proposed amendments.
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