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senate vote 2013-06-17#5
Edited by
mackay staff
on
2014-01-09 10:42:30
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Title
Bills — Environment Protection and Biodiversity Conservation Amendment Bill 2013; in Committee- Environment Protection and Biodiversity Conservation Amendment Bill 2013 - In Committee - Amend to make more specific
Description
<p class="speaker">Simon Birmingham</p><p>I move opposition amendment (1) on sheet 7397:</p><p class="italic">(1) Schedule 1, item 1, page 3 (line 15), omit "involves", substitute "is a".</p>- The majority voted against a [http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;db=CHAMBER;id=chamber%2Fhansards%2Fa100ffa9-3adc-47c2-982a-7e995fa6e144%2F0316;query=Id%3A%22chamber%2Fhansards%2Fa100ffa9-3adc-47c2-982a-7e995fa6e144%2F0000%22 motion] to change the wording of proposed section 24D(2)(a). The motion was introduced by Liberal Senator Simon Birmingham.
- ''Debate in Parliament''
- The proposed section 24D(2)(a) currently reads:
- ''(2) A person must not take an action if:''
- ''(a) the action involves:''
- ''(i) coal seam gas development; or''
- ''(ii) large coal mining development; and ...''
- Senator Birmingham's motion was an amendment to change the word "involves" to "is a". He [http://www.openaustralia.org/senate/?gid=2013-06-17.220.1 said] that the current wording is too broad and so this amendment would "minimise the potential ... for there to be any unintended consequences as a result of this going through".
- Labor Senator Jan McLucas disagreed, [http://www.openaustralia.org/senate/?gid=2013-06-17.221.1 saying] that Senator Birmingham's amendment "would limit the bill to activity which is a coal seam gas or large coalmining development rather than activity which involves such developments".
- ''Background to the Bill''
- The purpose of the bill is to protect water resources from significant impacts caused by coal seam gas and large coal mining developments.[1]
- References
- * [1] See the [http://www.aph.gov.au/parliamentary_business/bills_legislation/bills_search_results/result?bid=r5001 Parliament of Australian website] for more information about the bill, including its explanatory memorandum and bills digest.
<p>This is a relatively simple definitional amendment which is fairly minor and specific in its nature. To put this amendment in some context for the chamber, the proposed section 24D(2)(a) reads:</p><p class="italic">(2) A person must not take an action if:</p><p class="italic">  (a) the action involves:</p><p class="italic">     (i) coal seam gas development; or</p><p class="italic">     (ii) large coal mining development; and</p><p>It then goes on to the other attributes of it being in Australia and having an impact on water et cetera. The coalition's concern with respect to the current wording of this amendment is that 'involves' is a relatively broad term in that obviously actions that may occur on a site which has a pre-existing coal seam gas development or pre-existing large coalmining development may involve as such those developments because they are within proximity on the site or otherwise but in reality those actions may not be related to those developments per se or at least those pre-existing coal seam gas or large coalmining developments may already have been subjected to all of these approvals processes. The coalition contends that it would be better if the bill and ultimately the act read that a person must not take action if the action is a coal seam gas development or large coalmining development and all of the other existing provisions within this section.</p><p>This is relatively minor but fairly technical. We would argue it does not change in any way the intent of the proposed amendments to the EPBC Act. In no way does it undermine the coverage of these provisions of coal seam gas developments or large coalmining developments. All it does is ensure that we minimise the potential, remove the potential with respect to this subsection, for there to be any unintended consequences as a result of this going through. We would hate to see a situation, having flagged concerns about the use of the word 'involves' rather than something more definite, that later down the track we saw projects and proposals captured as controlled actions under the EPBC Act that really did not deserve to be so captured given the intent of what we are debating and proposing here tonight.</p><p>I would hope that not just the crossbenchers but also the government would see that this is a simple, straightforward, technical amendment that removes and eliminates any potential doubt for there to be any unintended consequences from the legislation. It simply provides a more clear-cut definition and is something that I would hope all sides of the chamber would be willing to support.</p> <p class="speaker">Jan McLucas</p><p>The government does not support the proposed amendments. The proposed amendments would limit the bill to activity which is a coal seam gas or large coalmining development rather than activity which involves such developments. It is intentionally drafted in that way. The amendments as proposed by the opposition would, potentially, create confusion around which activities are or are not covered by the bill.</p><p>Coal seam gas and large coalmining developments typically are large and complex, involving infrastructure such as access tracks, pipelines, dams, drilling and excavation. A thorough environmental assessment would consider the impacts of these large projects as a whole. So it is intentionally drafted in this way. The proposed amendment from the opposition, I contend, is not minor or technical. It would actually add confusion of its own, because what we are proposing is that an assessment of the large projects that we are talking about would be done as a whole rather than an isolated element of a large coal development or a coal seam gas project. So, intentionally, the government has drafted these amendments to the act so that the totality of the project will be considered for its potential environmental impact.</p> <p class="speaker">Simon Birmingham</p><p>I thank the minister for the explanation. The explanation adds another layer of concern, however, to my way of thinking in this matter, and that is that the capacity of the government to assess projects through this legislation is unique when it comes to this new subdivision, subdivision FB, that is being inserted into the EPBC Act, because it is a subdivision that requires assessment of matters of national environmental significance that do not have to be assessed for any other types of development. So, Minister, though you said that the government would not want to see a situation where there had to be specific assessment of a coal seam gas development or a large coalmining development—you would rather see assessment of the totality of those developments—it does mean that the aspects of those developments that are unrelated, or are not, at least, a coal seam gas development or a large coalmining development, will have to clear hurdles that they would not have to clear were they not associated with a coal seam gas development or large coalmining development. If you were building a new port, for example, as part of the project, that new port would be subjected—and I am sure the officials will correct me if I am wrong—to these provisions about the significant impact on the water resource or the likelihood of a significant impact on the water resource, whereas if you were simply to make application to the government for approval to build that new port, in an application that did not involve a coal seam gas development or a large coalmining development, then it would not have to clear those particular hurdles around its impact on water resources.</p><p>So the risk and the concern here are that it sets up basically two different approval processes for potentially the same type of infrastructure or activity: that if you were building a port, a railway line or anything else for that matter—it could even be a tourist facility on the same site as a coalmine for some reason—it would have to clear the new water-trigger provisions, but if you were building that exact same proposal, without it being in any way close to a coal seam gas development or a large coalmining development, it would not have to clear the water-trigger conditions. So we will be setting up in this legislation essentially a two-tier system.</p><p>It is one thing for the government, by proposing, in passing this legislation, to subject coal seam gas developments and large coalmining developments to a different standard than it is subjecting all other economic activity or development proposals to, but it is something quite different for the government to say, 'And anything else that might be associated with that coal seam gas development and that large coalmining development will also be subjected to the higher standard, notwithstanding the fact that the same type of activities undertaken separate from a coal seam gas development or large coalmining development would in fact not face the same level of scrutiny.'</p><p>That two-tier approach—that discrimination, as such, against associated activities that requires them to clear a higher hurdle of environmental assessment than would otherwise be the case—is of particular concern and would be fixed by having the coalition's amendment. Yes, that may require there to be distinct assessment processes, in that if a project is a coal seam gas development then it would have to be assessed using the water-trigger tests under the EPBC Act and, separate to that, if it were a port or a rail line or anything else then it would be assessed like any other port or any other rail line under the remaining provisions of the EPBC Act.</p><p>I am sure that there are ways to ensure that the regulatory burden of that are minimised and in fact would be minimised, by virtue of the fact that you are not applying additional environmental conditions to those supplementary activities that might be undertaken in addition to the coal seam gas or large coalmine developments. So, Minister, I hope that you understand the point that I am making there, and if the government has some comfort in that regard I would welcome it, but otherwise I do think that there is an issue here: that we are setting up a situation where some actions of a development will face tougher environmental laws than would be the case were they not to be associated with a coal seam gas or large coalmining development.</p> <p class="speaker">Jan McLucas</p><p>I hope I can provide the senator with some clarity. What we need to be clear about is that the other activities that are involved in a coal seam gas project or a large coalmining development would be captured if they have an impact on the water resource. So, a port, which may be the point where coal is exported, would be assessed in a different way. But, if the activity has an impact on the water resource and if it is related to a coal seam gas project or large coalmining development, it needs to be assessed as a whole, so that all of those impacts that may impact on the water resource—or if they are related to a coal seam gas development or a large coal development—need to, by their very nature, be captured so that they are included. But that is the definitional umbrella, if I can say that. So the point you are trying to make is that everyone would be included only if there is a potential impact on the water resource and they are related to a coal seam gas or large coal development proposal.</p> <p class="speaker">Simon Birmingham</p><p>I thank the minister for the answer. With that in mind, I wonder if the minister would be able to provide an example of the type of activity that may have an impact on the water resource, which would be captured by the definition as it currently stands, but is not a coal seam gas development or large coalmining development.</p> <p class="speaker">Jan McLucas</p><p>In my first explanation of why we were not going to support your proposed amendment, I did indicate that coal seam gas and large coalmining developments typically are large and complex. They involve infrastructure such as pipelines, dams, drilling and excavation. Some of those activities may impact on the water resource, and that is the purpose of the amendments as we are proposing them.</p> <p class="speaker">Simon Birmingham</p><p>I, at least, understand where the minister is coming from. Hopefully, the <i>Hansard</i> record will provide some comfort to those concerned about the scope of this amendment. To my thinking, a dam for the storage of water extracted as part of a coal seam gas development is part of that coal seam gas development. But, if the government is saying that—for the sake of its certainty—it needs to have wording of this nature, such that those dams would be captured, that is obviously the advice the government is operating on. I struggle to see a situation where a dam, which you pump water extracted from a coal seam gas mine into, is not part of your development. Logically—in any way, shape or form—it is. I would still have some concerns that there is a potential for some unintended consequences here. But I note the assurances the minister has given and I hope those assurances prove to be accurate.</p>
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