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Content WindowEnvironment and Communications Legislation Committee - 13/11/2015 - Estimates - ENVIRONMENT PORTFOLIO
Senator Sinodinos, Cabinet Secretary
Dr Gordon de Brouwer, Secretary
Mr Malcolm Thompson, Deputy Secretary
Policy Analysis and Implementation Division
Ms Edwina Johnson, Acting Assistant Secretary, Strategic Policy and International Branch
Mr Dean Knudson, First Assistant Secretary
Dr Simon Banks, Assistant Secretary, NSW/ACT Assessments and Fuel Branch
Ms Deb Callister, Assistant Secretary, Qld/Vic/Tas Assessments and Policy Implementation Branch
Mr Bruce Edwards, Assistant Secretary, WA/SA/NT Assessments and Air Branch
Mr James Tregurtha, Assistant Secretary, Policy and Reform Branch
Mr Shane Gaddes, Assistant Secretary, Compliance and Enforcement Branch
Dr Diana Wright, First Assistant Secretary
Mr Matthew Whitfort, Assistant Secretary, Office of Water Science
Wildlife, Heritage and Marine Division
Mr Stephen Oxley, First Assistant Secretary
Mr Geoff Richardson, Assitant Secretary, Protected Species and Communities Branch
Mr Paul Murphy, Assistant Secretary, Wildlife Trade and Biosecurity Branch
Climate Change and Renewable Energy Division
Mr Brad Archer, First Assistant Secretary
Dr Lesley Dowling, Assistant Secretary, Climate Change and Renewable Energy Division
Clean Energy Finance Corporation
Mr Oliver Yates, Chief Executive Officer
Mr Andrew Powell, Chief Financial Officer
Ms Jillian Broadbent AO, Chair
Committee met at 08:27
CHAIR ( Senator Reynolds ): I declare open this public hearing of the Senate Environment and Communications Legislation Committee. These are supplementary budget estimates proceedings and the agencies heard during these estimates are those that have been nominated by various senators. The committee's proceedings today will begin with questions of the Department of the Environment in relation to the program 1.5, Environmental Regulation, and then move on to the Clean Energy Finance Corporation. The committee has set Friday 15 January 2016 as the date for the return of answers to questions taken on notice at the hearing today.
In relation to answers to questions on notice, I would like to acknowledge the department has provided the vast majority of the answers to the 77 questions on notice, which the committee requested, by 4 November. Secretary, this has been very helpful to the committee. Thank you, Secretary, and thank you to your staff for facilitating that.
Under standing order 26, the committee must take all evidence in public session. This includes answers to questions on notice. Officers and senators are familiar with the rules of the Senate governing estimates hearings. The Senate has resolved also that an officer of the department of the Commonwealth shall not be asked to give opinions on matter of policy and shall be given reasonable opportunity to refer questions asked of the officer to superior officers or to the minister. This resolution prohibits only questions asking for opinions on matter of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted.
I incorporate the public immunity statement.
The extract read as follows—
Public interest immunity claims
That the Senate—
(a) notes that ministers and officers have continued to refuse to provide information to Senate committees without properly raising claims of public interest immunity as required by past resolutions of the Senate;
(b) reaffirms the principles of past resolutions of the Senate by this order, to provide ministers and officers with guidance as to the proper process for raising public interest immunity claims and to consolidate those past resolutions of the Senate;
(c) orders that the following operate as an order of continuing effect:
(a) a Senate committee, or a senator in the course of proceedings of a committee, requests information or a document from a Commonwealth department or agency; and
(b) an officer of the department or agency to whom the request is directed believes that it may not be in the public interest to disclose the information or document to the committee, the officer shall state to the committee the ground on which the officer believes that it may not be in the public interest to disclose the information or document to the committee, and specify the harm to the public interest that could result from the disclosure of the information or document.
(2) If, after receiving the officer’s statement under paragraph (1), the committee or the senator requests the officer to refer the question of the disclosure of the information or document to a responsible minister, the officer shall refer that question to the minister.
(3) If a minister, on a reference by an officer under paragraph (2), concludes that it would not be in the public interest to disclose the information or document to the committee, the minister shall provide to the committee a statement of the ground for that conclusion, specifying the harm to the public interest that could result from the disclosure of the information or document.
(4) A minister, in a statement under paragraph (3), shall indicate whether the harm to the public interest that could result from the disclosure of the information or document to the committee could result only from the publication of the information or document by the committee, or could result, equally or in part, from the disclosure of the information or document to the committee as in camera evidence.
(5) If, after considering a statement by a minister provided under paragraph (3), the committee concludes that the statement does not sufficiently justify the withholding of the information or document from the committee, the committee shall report the matter to the Senate.
(6) A decision by a committee not to report a matter to the Senate under paragraph (5) does not prevent a senator from raising the matter in the Senate in accordance with other procedures of the Senate.
(7) A statement that information or a document is not published, or is confidential, or consists of advice to, or internal deliberations of, government, in the absence of specification of the harm to the public interest that could result from the disclosure of the information or document, is not a statement that meets the requirements of paragraph (1) or (4).
(8) If a minister concludes that a statement under paragraph (3) should more appropriately be made by the head of an agency, by reason of the independence of that agency from ministerial direction or control, the minister shall inform the committee of that conclusion and the reason for that conclusion, and shall refer the matter to the head of the agency, who shall then be required to provide a statement in accordance with paragraph (3).
(d) requires the Procedure Committee to review the operation of this order and report to the Senate by 20 August 2009.
(13 May 2009 J.1941)
(Extract, Senate Standing Orders, pp 124-125)
CHAIR: I welcome Senator Arthur Sinodinos AO Cabinet Secretary representing the Minister for the Environment and portfolio officers. Minister, would you like to make an opening statement?
Senator Sinodinos: No thank you.
Dr de Brouwer : Dr de Brouwer, which you like to make an opening statement?
Dr de Brouwer : No thank you.
CHAIR: I now call officers from the department in relation to program 1.5, Environmental Regulation, and invite questions.
Senator URQUHART: The government has introduced an amendment to the EPBC Act as part of the Environment Protection and Biodiversity Conservation Amendment (Bilateral Agreement Implementation) Bill 2014 that would open up the potential to possess exotic animals like bumblebees that were not legally imported. Can you explain the rationale for potentially supporting the use of bumblebees in Tasmania for pollination in greenhouses?
Mr Murphy : A feral population of bumblebees has established in Tasmania following an unauthorised or accidental introduction in the 1990s. As the species is not on the live import list under the EPBC Act, it is regarded as unlawfully imported. Currently it is an offence under the act to possess unlawfully imported specimens. The EPBC Act needs to be amended to facilitate commercial use of the feral population of bumblebees.
Senator URQUHART: I understand all that. This is trying to get from the department the rationale for that amendment to the EPBC Act. What is the rationale for supporting bumblebees for pollination in greenhouses? There is nothing hidden behind that question; it is just trying to find out about the rationale.
Mr Murphy : The industry has proposed a trial which cannot be conducted under the act because it would be against the law. So the act allows consideration of these types of trials where feral species are already established and there may be a way to put them to good commercial use. The legislation has safeguards in it and ensures that all the environmental risks are assessed. Provided those risks are acceptable then a trial of bumblebees would be able to proceed.
Senator URQUHART: Would it be fair to say that the rationale is because the industry has proposed a trial?
Mr Murphy : Yes.
Senator URQUHART: Some years ago when the issue of bumblebees was raised, I believe the department advised against allowing bumblebees to be bred for pollination purposes. Can you tell us what the basis of that advice was and what has changed since then?
Mr Murphy : That was an application under the act to allow bumblebees to be imported into Australia. To enable imports of live specimens, consideration has to be given to put the species on the live import list. That is a regulation for the whole of Australia. Bumblebees have only been established in Tasmania so, when the environmental risks were assessed with that proposal, it was found to pose too many risks to mainland Australia to allow bumblebees to be placed on the live import list.
Senator URQUHART: So that was broader than just Tasmania at the time so that is why the advice has changed. Is that what you are saying?
Mr Murphy : I note that we have not provided any advice yet about the bumblebees. We are still waiting for the assessment work to be done. The amendment to the EPBC Act is to allow the process to take place.
Senator URQUHART: Does the department believe that this would create an incentive to illegally introduce them to the mainland in the hope that their use on the mainland would eventually be permitted?
Mr Murphy : That would be one of the types of risks that would need to be considered as part of the process.
Senator URQUHART: Are there any measures that could reduce that risk?
Mr Murphy : I think doing a thorough environmental assessment and looking at the types of risks that any proposed use of a species poses enables all the factors to be considered. There is a public consultation process built into that. As well as that, in the amendment bill there is an opt-in clause for states. So even if the Australian government decides to allow commercial use then the state governments have to decide whether they would be allowed in their jurisdiction.
Senator URQUHART: In relation to the amendment that has been lodged to the EPBC bill, was that done without advice?
Mr Thompson : The department advised on that legislative amendment if that is what you are asking.
Senator URQUHART: I did not get that before so I just wanted to clarify that. Are there any risks to other industries such as honey products? I know there have been some issues raised in relation to not particularly beekeepers but honey producers who might raise some concerns. Are there any risks there?
Mr Murphy : We have to wait to see what the formal assessment is. There has been some examination of that issue before.
Senator URQUHART: What did that show?
Mr Murphy : There are not many examples in the world because in the northern hemisphere, where bumblebees are native, most of the research is concerning the impact that imported honey bees have on the native bumblebee population.
Senator URQUHART: So it is the other way round?
Mr Murphy : Yes.
Senator URQUHART: I guess you do not have any advice or any data to suggest that there could be risks to other industries at this stage?
Mr Murphy : No, we are working with the Tasmanian government on finalising the proposal for the trial and that includes an assessment of the environmental risks and that would be one of the risks I would imagine that would form part of the assessment.
Senator URQUHART: Do you know when that assessment is due?
Mr Murphy : It is really in the hands of the Tasmanian government to finalise.
Senator URQUHART: Are there any risks to the natural environment broadly or to native bees particularly from these bumblebees?
Mr Murphy : The risk in Tasmania with bumblebees at the moment without commercial use is low in the sense that they have been established already so the impacts have already taken place. Commercial use would increase the density of bumblebees. It may therefore have local risks. They are quite good pollinators, which is why the horticultural industry wants them. In the previous assessment, which looked more at the impacts on mainland Australia, the types of impacts included activating sleeper weeds—weeds that could pose a risk to agriculture that then become more prolific because of the pollinating power. One of the trials the Tasmanian government is considering is looking at how effective the bumblebees are at pollinating because the source of the bees in Tasmania, we think, is from two or three individuals from New Zealand, so they may not be very genetically diverse so they might be as effective as pollinators brought in from an outside source.
Senator SINGH: Mr Thompson, you said in relation to the amendment to the EPBC bill that the department provided advice. What was the nature of that advice? Obviously we are talking about bumblebee trials and the legality of the use of bumblebees at the moment. What was the advice on that amendment? My understanding was that the amendment allows bumblebee trials. Is that correct?
Mr Thompson : The amendment may allow bumblebee trials, depending on whether the conditions set out in the amendment are met and are around, as Mr Murphy said: the species is already part of a feral population within that state or territory, that possessing it in that state or territory would not present a threat to the environment, to ecological communities; that possessing it would not contribute to the feral population spreading further; and that the appropriate state or territory minister has agreed, in writing, to that species being included on the list in that state or territory.
Senator SINGH: When did the state government's trial commence, in relation to this amendment and your advice? I am trying to get some understanding of dates, here.
Mr Thompson : I do not have that chronology in front of me.
Mr Murphy : Tasmania has not start their trial. No trial has commenced.
Senator SINGH: Have you provided advice to the state government?
Mr Murphy : We have advised state government that it would be illegal to do a trial without amendments to the EPBC Act.
Senator Sinodinos: That is why there is an amendment coming through.
Senator SINGH: Does the advice on the amendment allow for a bumblebee trial?
Mr Murphy : Provided that the parliament decides to pass the amendment, the process can take place. The first stage of that process is a proposal for a trial with—
Senator SINGH: So it does. The amendment does allow for a bumblebee trial if this amendment is passed by the parliament.
Mr Murphy : It has to meet the process outlined in the legislation.
Mr Thompson : In the act, yes. The advice we have given the government and what the government is seeking to do is establish—not just for bumblebees—a general provision, a general process that would allow for this trial but, potentially, for other trials.
Senator SINGH: What does the amendment do, in broader terms, not just in bumblebee trials?
Mr Thompson : As Mr Murphy has already said—Paul, you are probably in a better position to explain this—the live-import list consists of two parts. Part 1 contains specimens that can be brought into Australia without a permit and part 2 contains specimens that require a permit before being imported into Australia. Conditions and restrictions may be imposed on any imports of these specimens. That is what is allowed, under the act, currently.
The amendment that has been introduced would establish a part 3 to the live-import list. That amendment would allow companies or individuals to possess live specimens that are part of an existing feral population, of state or territory, and listed under part 3, but only in accordance with those conditions I set out before. Any person could, then, apply to have a species added to the new part of the live-import list. Supporting information, including risk assessments, which we have already touched on, would be required to address the potential environmental impacts of that species being added.
Senator SINGH: Could you give an example of what species, other than bumblebees, could be on that list that individuals or companies may want to import into Tasmania, for example?
Mr Oxley : To be clear, the proposed provisions are not about importation of species into Australia. The provisions are about utilisation of existing populations of feral species. If this provision is passed by the parliament it does not contain any advice or qualifications as to which established feral populations of species, or which species, might be subject to the act. It is an enabling provision.
In those circumstances, if it emerged that there were a proposal to commercially utilise the feral population of another species, it would be open for that proposal to come forward to be subject to all the requirements in the bill around risk assessment and for the decision-making steps to be gone through and a decision made as to whether it would be approved under the EPBC Act or not. The provision is not one that just says, 'Put in the application; you are on the list.' It is: 'Make an application supported by a risk assessment. Go through a process. Have the agreement of the relevant state minister to the utilisation of that particular species.' It has a number of steps, in the process, that make sure the risk to the environment is being properly assessed and accounted for.
Senator SINGH: I think that answers my question.
Dr de Brouwer : We cannot speculate.
Senator SINGH: As cute as bumblebees are, they remain illegal in Tasmania.
Senator Sinodinos: Feral bumblebees.
Senator CANAVAN: Dr de Brouwer, reviewing the transcript this morning from last estimates—I apologise I shut you down a few times. We did have limited time. This morning we have a bit more time, so I will try to be receptive and open my ears—more than my mouth—as much as possible. I want to return to the issues around the Carmichael mine project and the statement you provided to us last time.
At the end of that statement you mentioned the amendments to the EPBC Act—I believe it was the Environment Legislation Amendment Bill 2013—that had been rejected by the parliament. You said these amendments were to ensure that not physically attaching particular documents would not invalidate an approval decision if all relevant information had been taken into account in making that approval. In this case, is it your advice or view that if those amendments had been enacted there would have been no reason for this decision to be set aside on these grounds?
Dr de Brouwer : It depends on how the legislation is formulated. In this case, the conditioning around the snake and the skink were fully addressed. If the legislative amendments had been made and it had been prospective that would have covered this particular instance.
Senator CANAVAN: You also said to us that there were conditions placed on this. I think there were a number of hectares put aside for conservation of the skink and the snake. Is that correct?
Dr de Brouwer : That is correct. There were 5,600 hectares set aside for the skink and 135 hectares set aside for the ornamental snake.
Senator CANAVAN: You have now reapproved the project. Were any of the conditions on the skink or the snake changed in the reapproval?
Dr de Brouwer : No. The minister made the approval afresh. There were no material changes to the conditions and certainly not relating to the skink or the snake.
Senator CANAVAN: Since we last met, the Australian Conservation Foundation has proceeded with, I believe, legal action or judicial review of the reapproved decision. Can you tell us if they are challenging the reapproval on any of the same grounds, in terms of not attaching preservation advices?
Dr de Brouwer : No. It is not on the basis of the conservation advices for the skink or the snake.
Senator CANAVAN: I have an email from the Australian Conservation Foundation, sent on 9 November, presumably, to their supporters and, for my sins, I think I have signed up to their emails. It mentions a number of issues around the mine and then it says, in bold letters and underlined: 'Will you donate $20 to help our legal challenge to stop this mine, once and for all?' Are you aware that the Australian Conservation Foundation are taking donations to fund this legal action?
Dr de Brouwer : I might ask Mr Thompson.
Mr Thompson : I was aware of that but only last night.
Senator CANAVAN: Given that you are one of the departments in charge of the deductible gift register for environmental organisations, is it your understanding that those donations would receive a tax deduction?
Mr Thompson : I cannot answer that. It is not really an area of the department that I look after.
Senator CANAVAN: Okay; I understand that.
Mr Thompson : I would have to take that on notice.
Senator CANAVAN: I realise we have only 1.5, so I am happy for you talk to that, Dr de Brouwer.
Dr de Brouwer : We can come back on that one on notice. I think the sense is that the legislation is very broad—the requirements, the purposes are very broad—under the act.
Senator CANAVAN: And when you do take that on notice, I would refer you—and maybe I will send you the relevant link—to the Australian Conservation Foundation's website, where it says that all donations to the Australian Conservation Foundation over $2 are tax deductible. From that I am presuming that these particular donations for which they are asking for this legal action are also tax deductible. But if you have other information I would be interested in that.
Senator RONALDSON: You will take all that on notice.
Dr de Brouwer : We will. I assume that what you are saying is right, Senator Canavan, but we will come back to you on notice.
Senator CANAVAN: I asked a number of questions about dates and processes in terms of this issue, and thank you for getting back to me on notice. I just want to clarify: if I am getting this right, the conservation advices for the skink and the snake were approved by the minister on 29 April 2014.
Dr de Brouwer : Yes.
Senator CANAVAN: And the department did do, in your words, a verification of conservation advices—and I am now paraphrasing—prior to the finalisation of the Queensland Coordinator-General's assessment report for the project, which was approved on 7 May 2014.
Dr de Brouwer : Yes.
Senator CANAVAN: So, can I take it from that that the department did check for conservation advices between 29 April 2014 and 7 May 2014?
Dr de Brouwer : Yes.
Senator CANAVAN: You say 'prior to' the finalisation. That is a little vague; what does 'prior to' mean—how long prior?
Ms Callister : We do not have a specific date of when that check was done. We expect that it was in late April. So, it would actually have been prior to the conservation advices being approved by the minister.
Senator CANAVAN: And you do not have that date because—part of the normal work of the officers involved?
Ms Callister : That is right.
Senator CANAVAN: In your advice to us earlier you mentioned that you are changing your practices and processes. Would one change be that such a check would be recorded—ticked off, if you like, and signed at a certain—
Ms Callister : We now have a formal check sheet that goes with all final decisions, and that check sheet records the date on which the check of the conservation advices was done and other relevant statutory documents. That is recorded with the briefing package when it is presented to the minister or the delegate for decision.
Senator CANAVAN: So, if that had been in place in this case, presumably this error would not have been made? When was the advice sent to the minister, for the actual approval of the Carmichael mine project?
Ms Callister : The minister took that decision on 24 July.
Senator CANAVAN: 2014?
Ms Callister : That is right. So, the answer to your question is yes, that new system would have checked that.
Senator CANAVAN: Okay; I was just trying to check the dates. So, this would have obviated the risk of this occurring.
Dr de Brouwer : Yes. We are also looking to fully automate our systems or make them electronic so that they are connected so that it does not rely on individuals; it is embedded in the IT system.
Senator CANAVAN: Continuing on from that, the preservation advices—or conservation advices; people seem to use different terms—were approved on 29 April 2014. The decision was made on 24 July 2014. You have said you did not have any formal checks, but presumably a lot of people involved in preparing briefs for the minister would have seen both the preservation advices go to the minister in late April and the documents relating to the Carmichael mine later. Why wasn't it picked up in that process—that someone would have realised, 'Hey, only a few weeks ago there were preservation advices on these animals and now we have approval in dealing with these animals.' This issue has been something of high profile for your department, given that the legislation was prepared last year, to close this loophole. Why wasn't that picked up in that process?
Why didn't someone along the chain realise that there could be an issue here?
Mr Knudson : The reality is that out of Mr Oxley's area they are dealing with the conservation advices. For example—
Senator CANAVAN: Mr Oxley is 1.5, or—
Mr Knudson : He is 1.4.
Dr de Brouwer : Let me just explain. There are two divisions. There is the Environmental Standards Division now, which formalises the briefing to the minister on the approval for EPBC Act approvals. And there is a separate Wildlife, Marine and Heritage Division that prepares the conservation advices. So, essentially there are two administrative streams, and what we have done since then is ensure that those two streams work together.
Senator CANAVAN: And I suppose I was expecting that to be the case, but I would expect that at some point advice to the minister is centralised in a corporate or external relations type of team in your department. Is that the case? Or do they go straight to the DLOs in the parliament—the ministerial office?
Dr de Brouwer : They go themselves to the minister. The two separate streams go to the minister, and that has been a reflection of what happened in this case, of ensuring that those information systems are integrated.
Senator CANAVAN: Do you yourself, as secretary, see all the advice that goes to the minister?
Dr de Brouwer : I do.
Senator CANAVAN: Presumably you cannot read it all, though—or you do?
Dr de Brouwer : I read what I can.
Senator CANAVAN: That is fair enough. So, the only people who would have had eyes on everything coming through would have been the minister's office itself, not in your department?
Dr de Brouwer : No.
Mr Thompson : As deputy of the Environment Protection Group I would see briefing that comes through. It is then whether a connection is made from the briefing between the two items. The other point I would draw on is that, as the Secretary said in his statement, there are a large number. Part of the consequence of the Shree court case decision was that the department has produced a large number of conservation advices. So, a large pulse of advices are coming through.
Senator CANAVAN: Okay. I do not want to get sidetracked too much, but I do not quite understand that. Why did the Shree decision lead to that?
Mr Knudson : On the back of the Shree decision, back in 2013, one of the consequences was that we realised that we had a number of species that did not have conservation advices developed. Therefore, there is a program done in the Wildlife, Marine and Heritage Division to produce those additional conservation advices. So, that is the pulse Mr Thompson if referring to.
Dr de Brouwer : Perhaps I could just go back a little. There was a mechanism for drawing them together. There was a check on a database, and in this case the database had not been updated at the time when the staff in your Environmental Standards Division were doing their check. And it was not picked up then through the review processes, either through the Deputy Secretary or myself. On that basis, we have changed the system.
Senator CANAVAN: Yes, I understand that. I am just not following why Shree led to that. My understanding of Shree was that if there was a preservation advice for a particular threatened species then the minister had to view that document. That is a conditional statement. Why did Shree cause the department to try to make preservation advices? Obviously if this is a loophole—and the government felt that it was a loophole last year, given that it sought to close it—the more preservation advices that exist, the more the loophole can potentially arise. So, why did the department decide to create more preservation advices in response?
Mr Oxley : In high-level summary, off the back of the Shree case, we went back and looked at all the species that are listed under the EPBC Act.
Senator CANAVAN: Threatened species?
Mr Oxley : Yes, threatened species, and we are required to have either a recovery plan in place, or now, for new listed species, we are required to have a conservation advice in place at the minimum. Off the back of Shree, we did an assessment and identified that there were something like 50 species for which the recovery plans had lapsed. We then immediately started work to develop conservation advices for each of those species so that we had a set of advices that were in accordance with the requirements of the EPBC Act. That is why those 50-odd additional conservation advices were prepared at that time.
Senator CANAVAN: Can you point me—this act is so complex! What part of the act requires you to have preservation advices? That is not section 139 (2), because I know that part of the act. What part of the act requires you to have preservation advices or recovery plans?
Mr Richardson : It is under part 13. I do not have the section number in front of me, but part 13 of the act requires that all newly listed species have a conservation advice in place. If I could just add to what Mr Oxley just said, for the requirement to have conservation advice in place for all listed species, we saw an amendment to the act in 2007. At the top of that amendment, there was a transitional arrangement brought in at the same time that said that species for which a recovery plan was in preparation did not require a conservation advice in anticipation of those recovery plans being finalised. For the majority of the 50 species that Mr Oxley just spoke, we actually had reconsidered and decided that for the recovery plans—that had been in preparation from that determination made in 2007—we would basically give up on. With the recovery plans being prepared by different state governments, the governments had backed away from some of those. We took the decision at that time to write conservation advices for those species.
Senator CANAVAN: So that part 13 and the specific provision relating to preservation advices or recovery plans, they are requirements, as the department and the government, to do these things?
Mr Richardson : That is right.
Senator CANAVAN: After Shree, it was clear that you were not in compliance with the requirements of the EPBC Act because you did not have these things in place?
Mr Richardson : As I said, the 2007 amendments allowed for conservation advices not to be in place for those species that were deemed to have recovery plans in preparation. But by 2014, it was decided that we should be putting conservation advices in place for those species where we not expecting recovery plans to be delivered any time soon.
Senator CANAVAN: So Mr Oxley said before that recovery plans had to be in place. That was slightly not accurate then. Could you are correct that?
Mr Oxley : Yes.
Senator CANAVAN: Recovery plans had to be in preparation. I believe I took your evidence—I will have to review it, but I took—that they had to be in place. Either those in place or—
Mr Oxley : Yes. Mr Richardson has given a more accurate answer than the one I provided.
Senator CANAVAN: I do not know how we expect businesses to always be in compliance with that when it seems hard enough for the officials whose full-time job it is. At the last estimates, I did ask if I could get the date that you, Dr de Brouwer, were informed of the lack of material—that is, the lack of the preservation advices being attached. When were you informed of that? That has not been answered. It is my understanding—
Dr de Brouwer : I am sorry, I thought it had been.
Senator CANAVAN: All right. That was just my advice.
Dr de Brouwer : I was informed verbally in the week starting 15 June 2015. I do not know the exact date—
Senator CANAVAN: The twelfth of June 2015 was when the Mackay Conservation Group added this as an item.
Dr de Brouwer : Yes. When the Mackay Conservation Group added that item, then I was informed soon afterwards the next week.
Senator CANAVAN: Just take me through what happened then after that. I know I said last time that I would have hit the roof personally. What did you do at the time?
Dr de Brouwer : We, clearly, had extensive internal discussion about how the matter arose, what happened and the systems that were in place. I discussed it with the officers. The officers talked me through how we got to this position. Then we briefed the minister.
Senator CANAVAN: So obviously a mistake was made. I know this is sensitive, but has anyone been disciplined, counselled, removed or demoted?
Dr de Brouwer : As I said—
Senator CANAVAN: Or what has happened? As I said last time, I am sorry to bring these sensitive matters up, but it is a $16 billion process. My understanding is that in the order of 90 people in Brisbane have lost their jobs since this further delay. It is directly as a result of the delay; those numbers might be approximate. What has happened internally at the Department of the Environment? From all the evidence that you have provided, this is something that has gone wrong within your department.
Dr de Brouwer : We discussed the changes that had been made after the Shree decision, which were then to make sure or check for conservation advices. That had been done as part of a general information collection and briefing preparation for the minister. The briefing material for the minister around approvals is very complex. The department has long aimed to meet the timeframes for decision-making. The officers did that check; they just did not do the check again at the last moment to see whether there were any other conservation advices. As I said, they had also included the skink and the snake in the advice to the minister around the conditions that would be required for the Carmichael project to proceed. The officers, to me, said that they took responsibility for not doing the extra check. We had a considerable internal discussion around this. I talked about it with the officers.
I am the person who is ultimately responsible for those decisions, and I accept that responsibility. I thought when people make mistakes or the system does not work, if you seek to penalise people for that then what are the consequences for that. Certainly, people have to be held responsible and accountable for what they did. In the case here, the officers acted in good faith. They tried to improve the system. There was no malicious intent and no negligent intent. There was not a final check so we did not do as well as we could have, but I am responsible for that, ultimately, as the secretary. In terms of our internal discussion and if I were to penalise or sanction the officers: they took responsibility for what they did, and I need to have a department that, when things happen, people are open and admit and address those problems so that we can focus on how we strengthen the system as a result, so my judgement was to look to how we improve and address the system so that these things do not happen again. As I said, we have changed our internal systems as well as having an external review on our maturity as an environmental regulator. At the end of the day, I am responsible.
Senator CANAVAN: My other life has been as a public servant myself, and performance management is usually taken fairly seriously in the public service. I take your point about the cultural issues, but, as I say, it is a very big project and it is of very big importance to my region. It has had direct impacts on people's lives. Can I confirm that there will be no financial or professional penalties or bonuses or anything at all imposed on anyone involved in this decision where mistakes were clearly made?
Dr de Brouwer : It has been taken into account in terms of people's performance assessment and those internal processes, but there has been no disciplinary action taken against the officers as a result, and I am responsible. I cannot have a culture of blame. We take responsibility for these things, and I am not downplaying at all how serious it is for people's lives, but there was good intent from the officers involved in this case and, ultimately, that responsibility then lies with me.
Senator CANAVAN: Obviously, I do not disagree with those sentiments, but there has to be a culture of accountability, in my view, as well. Going forward—and I am more interested in going forward, because this has happened, it is past history and there is nothing that can be done about the Carmichael mine project; it will play out—I am more interested to make sure that it does not happen again. Have you made it clear that if it happens again, now you have all these checks in, there are possibly going to be penalties?
I understand what you are saying, but at some point there also has to be consequences, as well, to create a culture of accountability, and the right incentives in that framework, as well.
Dr de Brouwer : The thing that was very clear in my mind was that the officers took responsibility to me and to the minister when this occurred. So there was no shirking of accountability or responsibility internally within the department. But then the department ultimately, as it faces the public, it is the secretary who is responsible in this case. What we have done, and I have tried to make this clear in my statement, is two major steps. One is to reassess all of our internal processes to ensure that all this information and material is integrated, and that we have the systems in place to manage that, including changing our IT systems.
The second is a major internal review of our maturity as an environmental regulator. We brought in Mr Joe Woodward, who is a former deputy of the EPA in New South Wales, to conduct that inquiry and work with staff. How do we not just meet our legal requirements and support the minister in his decision-making, but how can we be an effective environmental regulator at the Commonwealth level? So we are taking everything we can to learn from this experience.
Senator RONALDSON: On that point, clearly this can only be described as a massive stuff-up, with very significant ramifications. I take you back to a comment you made before. When you said that you now have these matters embedded in the system, are you saying that there is a series of fields that must be completed prior to the documentation actually being produced? Is it a bit like making a donation to a charity online? You have to complete all the fields, and if they are not completed then you cannot effectively submit. Do you have the process now down to a stage where you are confident that what has happened here will not happen again?
Dr de Brouwer : Yes. We have that process that you outlined. There is an explicit checklist that officers have to go through that involves the integration of these areas. We are changing our IT systems to embed that physically in the decision advice process. So, yes.
Senator WATERS: I have some questions mostly about mining projects. Hopefully we have the right folks here. I want to kick off with the Adani Carmichael Mine, which my colleague has already been asking about. We have some slightly different questions to ask. I am interested in the revelations that came to light last night—I am not sure if you saw the ABC 7.30 program. The head of Adani Australia was also in very senior management at the time of an enormous river pollution incident in Zambia.
Senator CANAVAN: Can I just make a point of order.
Senator CANAVAN: I think it is important that people are accurate. The report did not say that at all. The report said that this particular individual came into that organisation following that event.
CHAIR: Is this a point of order or are you making a comment?
Senator CANAVAN: I think it is important we are accurate.
Senator WATERS: Thanks, Senator Canavan, I will attend to my accuracy. As I said, the report revealed that the fellow was a senior executive at the time of a pollution incident and that the chap is now the head of Australian Adani. We see there are lots of Adanis in the Adani group, but he is the head of the relevant holder of the approval for the Carmichael Mine, as approved by the minister. I am interested in whether that information about that particular executive officer's environmental history was before the department and/or the minister at the time the Carmichael Mine was approved.
Senator RONALDSON: For heaven's sake. You have been here for five minutes and you start—
Senator CANAVAN: Is this an Indian thing?
Senator WATERS: No, it is an African thing, Senator Canavan. It is not an Indian thing.
Mr Knudson : The department has issued a statement on this issue. It outlines the process that was undertaken to assess the environmental history of the Carmichael project. That statement notes that the project's approval was made in full accordance with national environmental law, and that the department's consideration of the proponents environmental history was the most comprehensive undertaken under the EPBC Act. As part of that consideration we not only sought relevant advice from Adani, but also the three parent companies, for a period that covered 10 years. The scope of that request went well beyond what is required under the EPBC Act for the decision process, but reflects the robust approach that has been applied to this approval process.
The department provided clear advice to the minister that the requirements for protecting the Australian environment would be met through the 36 strict conditions imposed and that these conditions would fully protect matters of national environmental significance. The department at this point obviously is focused on ensuring that these conditions are implemented, monitored and enforced in a transparent manner. The department also noted that the additional information that was provided by an NGO, which was the subject of the report last night about the environmental history of the company operating in another country, which employed a current employee of Adani, but that we are seeking clarification from Adani on that matter. That was also included in the report last night.
Senator WATERS: I have a number of questions and I have in front of me the statement of reasons to which you are referring, so that is good. Was the information about this Zambian incident before the department or the minister when the Carmichael Mine was approved?
Mr Knudson: No.
Senator WATERS: Did you ask Adani for this information?
Mr Knudson: We asked for the environmental history of the executive officers in both Adani Mining Ltd and also its three parent companies, covering 10 years.
Senator WATERS: Why was this information not provided then?
Mr Knudson: That is what we are seeking clarification from Adani on.
Senator WATERS: You said you have sought clarification. Do you have a copy of that letter that you could table that outlines the parameters of your request?
Mr Knudson: I do not have that with me.
Senator WATERS: Could you please provide that to us at your earliest convenience.
Senator Sinodinos: Do you need to get the permission of the company to table the letter?
Mr Thompson: I think we would need to take it on advice.
Senator Sinodinos: I think we have to check that.
Senator WATERS: All right. Thank you. I am interested in any correspondence from the company, as well, which you would clearly need to check with them for permission.
Senator Sinodinos: There is a press release overnight, I think, that was issued by Adani about KCM. Have you seen that?
Senator WATERS: Yes, I have.
Senator Sinodinos: It says that he was not personally responsible—or alleged to be personally responsible for environmental breaches in Zambia and elsewhere. I am not defending the particular individual, but I think for the sake of fairness we should note that the company has identified has role as having been to take responsibility for managing legacy issues and implementing world-standard improvement and capital projects.
Senator WATERS: Hence my questions about what the department is now asking the company. Have you had a response yet to that request for clarification?
Mr Knudson: We have had a response from Adani indicating that they require two weeks to get back to us on that.
Senator WATERS: When does that two week time frame finish?
Mr Knudson: Two weeks from today.
Senator WATERS: You received the letter today?
Mr Knudson: No, the request was for indicating that they would be back to us in two weeks from today.
Senator WATERS: When did you get the letter?
Mr Knudson: We got their reply two days ago.
Senator CANAVAN: In your request you asked them to get back to you in two weeks?
Mr Knudson: No.
Senator WATERS: The company asked for two weeks.
Mr Knudson: To be very clear, we had requested that they respond as soon as possible, and ideally by Friday. Today the company has come back and asked for an additional two weeks beyond the original suggested date.
Senator WATERS: In your first response you mentioned that you thought this was the most comprehensive request for information about the environmental history of the proponent. That does not really square when there has been these new revelations that you were not aware of at the time of the approval. How was this information not in the department's knowledge?
Senator RONALDSON: Point of order. I have a copy of the statement here. They have quite clearly indicated what the work being conducted by this particular person was, and it does not accord with the allegations you are making. The bottom line is that this is the most comprehensive undertaking in relation to environmental history ever undertaken.
CHAIR: That is not a point of order.
Senator RONALDSON: So if you want to just get on with the matter and stop defaming people. Read the statement and then you might have a clear understanding of what the debate is about.
CHAIR: That is not actually a point of order, but, thank you, Senator Ronaldson. Senator Waters.
Senator WATERS: I am seeking to obtain some information from the officials, so I appreciate you allowing me to continue on with that. We are asking about how the department informs itself in order to then brief the minister to make decisions. I am still seeking to understand why it is that the department, despite, as you say, having an apparently comprehensive approach, did not have this information in front of them.
Mr Knudson : The fact that we asked for the history of the four companies in the chain of command of Adani covering a 10-year history is why that is the most comprehensive request that we have ever done in environmental history. In terms of why this information was not included in that assessment: that is why we have specifically asked Adani to come back and clarify that question.
Senator WATERS: Am I correct that the obligation is on the proponent to supply this information, and the department effectively just waits for companies to dob themselves in? You do not do any of your own investigation?
Mr Thompson : Consistent with the information that we seek on environmental impacts, where the onus is on the proponent to tell us what the environmental impacts are, yes. We request information. We receive that information and review it.
Senator WATERS: Could it be that you did not know about this scandal because you require companies to dob themselves in rather than investigating the history of the department's own volition?
Mr Knudson : The fundamental basis of the environmental assessment process, which is the same in every country in the world, is that it is a self-assessment process. It does not mean, however, that we do not do our own assessment in behind that. I have talked several times about the fact that on issues where there is a high level of uncertainty et cetera we will do analysis of our own. In the case of environmental history the compliance and enforcement area will always do—'always' is perhaps a large word; a risk-based approach—an analysis of the environmental history of the corporation in Australia in particular. Obviously, with the limited environmental history that Adani has in Australia that will be as robust in terms of the analysis that we would have in our regular data systems. But, that being said, an analysis was done of the environmental history to inform the briefing of the minister. This did not come up in that, though.
Senator WATERS: Hence my point: if you require companies to dob themselves in, they are probably going to leave stuff out.
Dr de Brouwer : There is a general presumption at law that is uniform throughout almost everything we do in society—that people act according to the law, and that is the presumption here. Companies come forward with their environmental assessment and reporting, and there is a general presumption that people act in accord with the law.
Senator WATERS: Let's go to that, particularly given that you reference that in the statement of reasons. My understanding is that there have been some allegations made in relation to Adani's environmental history in its home country, and, in particular, that there had been quite an extensive investigation, which you do reference in the statement of reasons, about the conduct of the company in relation to the Mundra Port. That is what I want to now ask about. You mention in your statement of reasons that there were some commonality between the boards of the offending companies in India and the Australian branches of Adani. Can you tell me some more information about the commonality there.
Ms Callister : Our understanding is that there was some commonality in the directors of Mundra Ports SEZ Limited, otherwise known as Adani Ports, and the directors of the parent body of Adani, which is Adani Enterprises, including Mr Adani. I think he was one of them. That was where that commonality was between the companies that are in the direct line between Adani Mining and their parent companies and this other company, Adani Ports.
Senator WATERS: That meant that you were able to consider that information as it pertained to the suitability of Adani to be given licence to build the Southern Hemisphere's largest coal mine to ship out through the World Heritage Great Barrier Reef?
Ms Callister : That is correct.
Senator WATERS: In the statement of reasons you somehow come to the conclusion that the proponent is a suitable person despite the fact that there had been a 2010 investigation of Adani Mundra's operations by the Indian ministry of environment, which found evidence of large-scale destruction of mangroves near the port, and that, subsequent to that investigation, the ministry issued a notice saying that it was of the opinion that Adani Mundra had violated certain environmental regulations and not complied with the conditions of its environmental approval and required the company to show cause as to why its approval should not be cancelled.
There was then a further investigation in 2013 by an independent committee, which had been set up by that ministry, to investigate complaints about the environmental impacts of the operations, and that committee found 'incontrovertible evidence' of violations of environmental clearance conditions and noncompliance. Yet in the statement of reasons you seem to place very little weight on that. You say that the allegations are in the process of being investigated and that no positive finding has yet been made; however, you do note that a 'show cause' notice has been issued. I do not understand how that adds up. How do you then reach the conclusion that this company is a suitable person for the purposes of conducting a very large operation in Australia?
Ms Callister : I think you need to look at the entirety of the considerations around this matter. Firstly, the issue around prior environmental history is not black and white in that it is one of the matters that the minister may take into account. But it is our standard practice that the minister does take that into account. But it also is not a punitive clause. It does not indicate that if you find anything of any nature that may be connected that, therefore, that company is rendered unsuitable to be granted an approval under the EPBC Act. A whole range of matters need to be taken into account here. What we were looking at here in relation to Adani Ports was that you had some connection between the directors of the parent company of the parent company of the parent company of Adani Mining. So what happened here was that a whole range of factors were weighed and taken into account, and one of the primary considerations was our consideration of their ability to meet their requirements in Australia under Australian law. When all those factors were taken into account and weighed, the minister took a determination that he thought that they were a suitable person to be granted an approval.
Senator WATERS: What was the countervailing evidence to establish that they could and would uphold conditions, when there was a litany of demonstrable evidence that they were not complying with conditions?
Ms Callister : Not for Adani Mining.
Senator WATERS: That is the whole point of the environmental history provision: that you look to the chain of corporate command and at the history of executive officers. I do not understand how the minister could come to the conclusion that the statement of reasons says he came to.
Mr Thompson : Ms Callister just gave you an articulation of the way in which this works across the whole statement of reasons, including the way in which the act works, the way in which we have applied it in its history and the way in which we took into account all of the matters before advising the minister. The statement of reasons reflects the advice that we gave to the minister and on which he made his decision.
Dr de Brouwer : And that the conditions that are set out in the minister's approval meet the requirements to protect matters of national environmental significance—that the conditions will meet that.
Senator WATERS: (a) I do not accept that. But (b) that is assuming they are going to be complied with, which is the very point that I question.
CHAIR: Senator Waters, this is starting to sound a bit like a debating point rather than a question and answer.
Senator WATERS: I will move on. Given that those three investigations in India were weighed and somehow found not to be enough to judge the proponent unsuitable, which again bemuses me and concerns me greatly—
Senator RONALDSON: It is a comment again.
CHAIR: Senator Waters, if you could focus, given the time, on asking questions.
Senator WATERS: Given that context, what about Zambia? Given that their legal system is nowhere near as robust as ours—
Senator RONALDSON: That is the very point.
Senator WATERS: and given the allegations last night, what would your approach be to weighing the allegations under that legal system when judging suitability?
Mr Knudson : I have to come back to the fact that we have sought clarification from Adani, and it would be premature for us to comment at this point without having received, as is appropriate, a response from Adani to our request.
Senator CANAVAN: Can I just clarify something about this company in Zambia, KCM: it is not connected to Adani directly?
Senator WATERS: No. It is the same executive officer.
Senator CANAVAN: I just wanted to get that clarification. I just googled Jeyakumar Janakaraj. On his LinkedIn account it says he was CEO of that company for four years, starting in October 2008, which, just for the record, is after this environmental incident. He is hardly hiding it under a bushel. Did you view his LinkedIn account at all? Is that something you would do?
Mr Knudson : The original material provided by Adani noted his role with that company at that time.
Senator CANAVAN: Right.
Senator WATERS: Can you say that again?
Mr Knudson : The material provided by Adani in the environmental history noted his role as CEO of that company at that time.
Senator WATERS: What date was that provided?
Mr Knudson : We will have to take that on notice. I am not sure.
Senator WATERS: I thought we established earlier—
Mr Knudson : This is the original environmental history assessment done to inform the decision that was just made.
Senator WATERS: For the mine?
Mr Knudson : That is correct.
Senator WATERS: I was asking about that earlier and I thought you said that this knowledge was not before you.
Mr Knudson : What I said was that there was no information provided on this incident. The information provided by Adani did note that the individual was in that role with that company at the time. What it did not note was any environmental history of note with respect to the time he served there.
Senator WATERS: So they disclosed the links to the company, but that was not enough. What sort of checks do you do? I thought you said you checked the environmental history of executive officers.
Mr Knudson : As Ms Callister laid out, there were a number of elements that went into our assessment of the environmental history of the proponent, including seeking that advice from the company, which included the fact that he had served in that role. However, it did not include any information on any environmental incidents, so that is what we are seeking clarification on at this point.
Senator WATERS: So we come back to the fact that you do not do any investigations until the company puts up a red flag and dobs itself in?
Mr Knudson : That is not what I said earlier on.
Senator WATERS: I genuinely do not understand.
Senator RONALDSON: You have got your—
Senator WATERS: Excuse me. I have the call. You guys have had a good go. It is my turn now. I do not understand why, when you were told that there was a link between the executive officer of the company seeking approval from your department and a different company, you did not then check to see whether there were any relevant incidents.
Senator CANAVAN: And the reason they did not check about the preservation advices, Senator Waters.
Senator WATERS: Your government has sacked a quarter of their staff, which is probably not such a good idea, in terms of their capacity.
CHAIR: Senator Canavan and Senator Waters, if you could just come back to the point. Could you clarify exactly what you are asking, because I have heard several answers now to the same question.
Senator WATERS: Me too.
CHAIR: I think it has been asked and answered several times. For the sake of time, can you clarify exactly what information you have not got yet so that we can move on.
Senator WATERS: Once and for all: you did not check the environmental history of the executive officer, despite the company saying that this person had links to this other company which has been convicted and fined in another country?
Senator RONALDSON: He was not with the company at that stage—
Senator CANAVAN: Not at the time of the incident. That is right, Senator Ronaldson. He was not with the company—
CHAIR: Senators, a question has been asked, so if you could allow the officials to—
Senator CANAVAN: She is making innuendo on innuendo on innuendo.
Senator WATERS: Pipe down, buddy!
CHAIR: Senator Canavan, you do not have the call. A question has been asked, so please allow the officials to answer.
Ms Callister : We sought and obtained considerable information in relation to the environmental history of Adani. That came from a range of sources, including non-government organisations. We then conducted an assessment of that information. We did not conduct an investigation of that information. I think that is an important distinction, because it was an assessment process not an investigation process.
Senator WATERS: Would you now describe what you are currently undertaking as an investigation or an assessment?
Mr Knudson : It is a request for information back from the company. It is neither, in fact.
Senator WATERS: Have you advised the minister to take this new information into account in the decision that he is due to make on the Abbot Point coal port expansion, which is being built, in part, for the Adani group of companies?
Mr Knudson : It would be speculation. It is dependent upon what information we receive from Adani. However, to the extent that it is relevant, it will be included.
Senator WATERS: So you will put that new information in front of the minister?
Mr Knudson : To that extent, that it is relevant
Senator WATERS: Will you be advising the minister in relation to his legal powers to reconsider the Adani mine approval on the basis of this new information?
Mr Knudson : Again, that is a question of speculation.
CHAIR: Senator Waters, I think that is a hypothetical.
Senator BACK: The question is hypothetical—for heaven's sake!
CHAIR: Senator Back, if you have got a point of order, let me know.
Senator BACK: I do have a point of order. The question is hypothetical.
Senator WATERS: Alright, I will rephrase. Have you advised the minister of his ability to reconsider the approval for Adani's mine on the basis of this new information?
Senator RONALDSON: Point of order—
Senator WATERS: It is not hypothetical. It is: what have they done? Have they told the minister he can overturn the approval or not?
CHAIR: What is the point of order, Senator Ronaldson?
Senator RONALDSON: That would be policy advice to the minister and not appropriate to be answered by these officers.
Senator WATERS: About the minister's legal powers—is anybody telling him that he could reconsider the approval on the basis of this new information or is it just me doing that now?
CHAIR: Senator, that does sound like you are now asking for policy advice that would be given to the government. If you have still got information outstanding, could you rephrase it so it is neither hypothetical nor policy advice?
Senator WATERS: I will try, thank you. I was not actually going to the content of the advice, but who would be responsible for advising the minister of his legal powers to reconsider an approval in light of new information? Would that be the department?
Dr de Brouwer : The department.
Senator WATERS: I look forward to that occurring, hopefully.
Senator Sinodinos: The problem we have got—to slightly add to what the officers have said—is that we do not have the new information yet, so we are still speculating about something that is still some way away.
CHAIR: We will move on, but can I clarify: so new information came to light yesterday and you have gone back to seek further information on the new information. They have said it will take two weeks, so once that new information comes in the department will assess that new information and provide advice to the government accordingly?
Senator Sinodinos: That is the process, yes.
Senator WATERS: I have a related question. Does that accord with the time frames for the decision on the Adani coal port expansion application?
Ms Callister : There is no Adani coal port—
Senator WATERS: The North Queensland bulk ports Abbot Point expansion.
CHAIR: Senator Waters, get the official finish her answer please.
Ms Callister : It is actually the Queensland department's—
Senator WATERS: Oh that is right, the Queensland government is doing it now even though the promised they would not in the election campaign—
CHAIR: Please allow the official to answer the question.
Ms Callister : The Queensland Department of State Development is the proponent, so that would be the person who the approval would be given to, if the project is approved.
Senator WATERS: What is the time frame?
Ms Callister : The current time line for that decision is 21 December.
Senator WATERS: So you will have time to get the response from the company and feed it into that process—21 December, did you say?
Mr Knudson : Again, to the extent that it is relevant. As Ms Callister just pointed out, it is a different proponent than is the proponent for the Adani mine.
Senator WATERS: That is a very interesting point. Does that mean that the law would not oblige you to then advise the minister about who will use the port because, clearly, as you say, it is the Queensland government that is now wanting to dredge and expand this coal port. The port would be used by companies—
CHAIR: That sounds like another hypothetical question at this point in time.
Senator WATERS: It is actually a process point at what—
CHAIR: You are asking to hypothesise about something that has not actually occurred yet.
Senator WATERS: No, it is a process point about environmental history and whether it is in fact relevant or not that something that is being built for a different entity that the application has been made by the Queensland government. Would you legally consider it relevant for the environmental history of the person that will use the facilities to be considered?
Ms Callister : That is a matter that we would be seeking legal guidance from our general counsel branch in preparing the information for the minister for his consideration on the project.
Senator WATERS: Thank you. I will watch for that with great interest.
CHAIR: To clarify that: so you will do that once you have got the information back?
Senator WATERS: They will work out whether it is relevant—
CHAIR: And find out what was relevant and what was not, and what course of action was required after that?
Ms Callister : That is correct.
Senator WATERS: Let us move on to Shenhua, because there was a bit of a difference of approach in the statement of reasons to the project we were just speaking about—the Carmichael Mine and Shenhua. Again, in relation to environmental history, in Adani the statement of reasons clearly show that you did consider overseas environmental history but somehow concluded that they were nevertheless a suitable person. But in—
Senator RONALDSON: Stop commenting and just put questions.
CHAIR: Senator Ronaldson, if you have a point of order, please go through the chair.
Senator WATERS: Please just let me ask the questions.
Senator Ronaldson: I do have a point of order. All these questions are laden with commentary. Could Senator Waters, who is quite capable of asking good questions, please just ask the questions without the commentary?
CHAIR: That is not actually a point of order. But I will take the point that we only have another 20 minutes, Senator Waters, so if I could just remind you to keep your questions concise, that would be helpful.
Senator WATERS: Thank you. There was a difference of approach taken in the statement of reasons for Adani, where you stated that you did consider the overseas environmental history but concluded that the applicant was nevertheless suitable. But the Shenhua statement of reasons does not include any discussion of that company's environmental history offshore at all. I am not sure whether the minister considered it: it is not in the statement of reasons as being considered. So why the difference? Why consider it in one instance and not in another?
Mr Knudson : The statement of reasons does not go to that point. It does talk about what we found in our assessment of the environmental history of the proponent. Dr Banks can outline what we found in that assessment, which is included in the statement of reasons.
Senator WATERS: I have read that, so thank you for the offer, but given the shortness of time I am more interested in why the approach was different in the two instances.
Mr Knudson : Again, every assessment is done individually. We take a look at a range of factors when we are conducting our assessments, and I do not have at hand the specific rationale that the assessment would have used for determining what was appropriate in this case. That is something I would have to take on notice and come back to you.
Senator WATERS: Thank you for doing so, because I am interested in whether anyone raised the environmental history of Shenhua Group. For example there is evidence of groundwater damage in Inner Mongolia, either by that company or companies within that group of companies, so I am interested in whether that was considered. The statement of reasons would infer that it was not, so can you take on notice whether it was, what information was before you and why you considered Adani's environmental history overseas but not Shenhua's environmental history overseas? That is the key that I am trying to get at. Thank you for taking that on notice.
While we are on Shenhua, where is the water management plan up to? Has that been sent to IESC yet?
Dr Banks : I understand that we have not received the water management plans at this time.
Senator WATERS: Okay, not yet. Is there a time frame on that?
Dr Banks : Not that I am aware of. It is in the hands of the company to provide those management plans when they are ready for our consideration.
Mr Gaddes : I could probably add a little bit more to that one. The last discussions we have had with the company is that they were expecting to commence mid-2016. So in order to get those plans assessed and approved before that we would expect they would probably need to be submitting those pretty soon, or towards the end of the year.
Senator WATERS: I will watch for that. Lastly, before my colleague asks some questions, I am interested in the New Acland Stage 3 expansion in Queensland. I am after an update. In February the decision date was extended until 30 April, but since then there has not been an update of the status of the project—unless I have missed it. What stage of the process is that mine now at?
Ms Callister : We have stopped the clock. After the recent Queensland state election the minister wrote to the Queensland government asking for advice on whether there were any projects with matters underway that may be relevant for his decision on projects that were currently under assessment. The advice he received back in relation to that was that the Queensland state government was going to be undertaking a review of the New Acland Coal Mine Stage 3 expansion, so at the moment our assessment process is paused while we wait for the outcomes of that review.
We are still waiting for advice from Queensland on the finalisation of that review. The Queensland Coordinator-General has concluded his assessment of the project, because the project is being assessed under the assessment bilateral. So once we get further advice from Queensland about that review we will then be recommencing and finalising the assessment process.
Senator WATERS: So the review that they are undertaking is separate from their actual approval process?
Ms Callister : Yes, the—
Senator WATERS: That does seem a bit odd.
Ms Callister : That is a matter really for Queensland. The Queensland Coordinator-General has concluded his assessment, and I understand that there has also been a draft environmental authority issued for the project. That has been objected to so that matter is now before the Queensland Land Court.
Senator WATERS: I do have some other questions but I will put them on notice.
Senator LUDLAM: I am just going to change up the subject some. I am interested to ask somebody about the EPBC assessment of the Roe Highway extension in Perth's southern suburbs—it is EPBC 2009/2031. Have you come to the table because you were involved directly in that assessment?
Mr Edwards : I was the delegate for the decision.
Senator LUDLAM: Great. I am interested to know principally whether it was a piecemeal referral. You will be well aware that the Roe Highway Stage 8 extension, which goes from Kwinana Freeway to a new interchange at Stock Road, is part of the Perth Freight Link, but for the purposes of the assessment was it a piecemeal referral?
Mr Edwards : The proposal was put forward some time ago and was assessed on its merits. Then we undertook the full environmental assessment, as we would with any proposal that comes forward.
Senator LUDLAM: You very carefully did not answer my question. Under the act, was it considered as a piecemeal referral or not?
Mr Edwards : No. We do not have a term that would characterise it as that. It was an entirely appropriate referral, and we assessed it according to our requirements under the act.
Senator LUDLAM: I am not as familiar with the act as my colleague, Senator Waters. How do you handle staged assessments for projects that are quite clearly a piece of a larger puzzle? For example, the Roe Highway extension stage 8 gets you to Stock Road, stage 2 of the Perth Freight Link gets you to just short of the harbour and stage 3 somehow gets you through North Fremantle into the harbour. That is the Perth Freight Link. That is the whole project. When you guys are given a piece of the puzzle to assess, how is that done?
Mr Knudson : I can help answer this question. We have this sort of scenario play out fairly frequently, and I think of the Pacific Highway upgrades in this part of the world, where we received a number of referrals over a number of years. As you would imagine these are large projects and take a number of years to roll out so it is in the interests of timeliness that we often receive them in a staged approach. To the extent that we can we definitely try to take a look at—and the act requires us to look at—cumulative impacts. So we will look at projects in the immediate vicinity, and indeed if there are other connections we will also take that into account.
Senator LUDLAM: When the state government has not worked out yet what it is going to do after Stock Road, how do you assess the cumulative impacts? You are given a piece of the puzzle, and even the proponent does not know where this freeway is going. How do you assess the overall impacts of a project like that?
Mr Knudson : What we have to do is take a look at what is foreseeable and known in a vicinity. For example, we have been talking about the Galilee Basin coalmines, and there are a number of proposals that are out in the public domain. We take a look at the cumulative impacts that would be anticipated on both water and resources and also on key species and then we try to figure out how that gets taken into consideration in a particular decision or an individual element of one project. So in the case of what you are talking about, with respect to the Roe Highway, we would take a look at projects in the immediate vicinity which would also have an impact and take a look at cumulative impacts that way. But when it is a speculative question and it is not clear whether something is going to be going forward then that would not be in scope.
Senator LUDLAM: That is not in scope. That is helpful. I understand the cumulative assessment impact concept, but this is a bit different. This is like stage 1 of a coalmine of which there are stages 2 and 3—you just do not know where they are going to go. But I take your point.
CHAIR: That sounds a bit like a debating point not a question.
Senator LUDLAM: No. I take the point that I think he used the phrase 'hypothetical' or that you are not sure any more than anybody else is.
Mr Knudson : Speculative.
Senator LUDLAM: Speculative indeed is quite appropriate. How did you consider the social and economic impacts of this project?
Mr Edwards : The primary role that we have is to consider matters of national environmental significance, and it is within that context that any relevant social or economic matters are considered. Certainly there are responses through the public consultation period that are made to the proponent. The proponent is required to respond to those points. They will also generally provide economic information in assessment processes, which we certainly don't validate but which is provided to us for our information and context for the decision maker.
Senator LUDLAM: When you say you 'don't validate', you do not critique it, as such? You take on face value information provided by the proponent?
Mr Edwards : Yes, it is certainly not our role to scrutinise or to revalidate any economic information that is provided to us.
Senator LUDLAM: Whose role is that?
Mr Edwards : It is for the proponent to provide that information. Again, there is a context setting rather than a decision point with matters of national environmental significance.
Senator LUDLAM: What if the social and environmental impacts are really heavily contested, as they are in this case?
Mr Knudson : It is a practice that we have had with a number of projects over the years, where exactly that scenario was played out. Therefore, we do not come in and say, definitively, that the economic value of a project is X. We will often put in a range, based upon the views that are out in the public domain about the economic impacts of a project.
Senator LUDLAM: Did the minister, in this case, in taking account of social and economic impacts, consider any alternative projects, or are you just constrained to what is put on your desk?
Mr Knudson : We are required to assess the project that is referred to us.
Senator LUDLAM: All right, that is fairly clear. In taking account of those social and economic benefits, what do you do when information is missing—for example, freight estimates; actual traffic movement estimates? If you do not have that—and please let us know if you do; but I assume you do not, because it may be that those figures do not exist—how do you take account of that, or can you call in the proponent to provide stuff that they have not provided?
Mr Edwards : I am not sure that we do have that material, but, in a general sense, again, that information is provided for context. We are primarily assessing an environmental assessment and it really would come to a matter of how relevant it might be in terms of the impacts on those environmental considerations.
Senator LUDLAM: I would have thought, if you were assessing a freight highway and then being provided with accurate estimates on the amount of freight traffic, it would be a material consideration for you guys.
Mr Thompson : It depends. The matters of NES, national environmental significance, do not cover all environmental aspects.
Senator LUDLAM: So air quality would not come across your radar?
Mr Knudson : It would, if it were a whole-of-environment assessment, which occurs in certain limited cases under the act.
Senator LUDLAM: It is for residents living next-door to the thing.
Mr Thompson : I understand that, but the sorts of cases that Mr Knudson is talking about would be where there is a development on Commonwealth land.
Senator LUDLAM: I am familiar with those constraints. Did you consider the costs and benefits of just the railway extension or of the entire Perth Freight Link?
Mr Edwards : We do not look at costs and benefits for a particular proposal, so that is quite separate to an environmental assessment.
Senator LUDLAM: On what date did the department provide its final recommendation to the minister's office?
Mr Edwards : I was a delegate on that occasion, so I made the decision. That formal advice or decision was not provided to the minister.
Senator LUDLAM: Sorry, I missed that last bit. It was not provided?
Mr Edwards : I was the decision maker, so I made the decision, and that was on 21 October.
Mr Thompson : The minister would have been informed of that decision, but that information was not provided for him to make a decision.
Senator LUDLAM: So the minister delegates the decision-making power to you? If he does not like the decision, that is too bad; he has delegated it.
Mr Edwards : As delegates, we are provided with a range of responsibilities under the act. We certainly consult, where appropriate, with the minister, but we are entrusted with those responsibilities.
Dr de Brouwer : It is standard process for officers to be delegated decision-making responsibility.
Senator LUDLAM: Can you tell us what time on the 21st you advised the minister that you had taken a decision?
Mr Edwards : No, I would have to take that on notice.
Senator LUDLAM: Yes, please. I wrote to the minister twice to advise that the project was subject to judicial review in the state Supreme Court of Western Australia on three quite significant grounds. How did the department, or how did you directly, consider each of those three grounds and how they might impact your assessment, or did you consider them at all?
Mr Edwards : We certainly consult with our general counsel branch, and we received advice in relation to that. I am obviously not able to share legal advice, but we certainly took advice from general counsel.
Senator LUDLAM: So, as the Commonwealth, you are restricted to matters of national environmental significance and the state handles the rest? When the state assessment is being judicially reviewed for bias and not taking into account important information, do you consider that undermines the quality of your decision-making on national environmental matters, or do you not consider that relevant?
Mr Edwards : Again, I cannot share the legal advice, but the national level assessment stands independent of the state assessment and so again we review all the information on hand. My understanding is that a range of the matters raised in Western Australia relate to the process undertaken, but we were confident that we had the right information to make a decision under national environmental law.
Senator LUDLAM: Do your approval conditions allow for land clearing to commence before you have identified and secured your offsets?
Mr Knudson : We do have that situation occur on occasion.
Senator LUDLAM: On this occasion?
Mr Knudson : On this occasion I am not sure that we have the information at hand and so we would have to come back on notice on that as to what the specific requirement and the condition set were.
Senator LUDLAM: I would like to know whether they can put bulldozers to that country before they have identified the offsets.
Mr Knudson : Typically an approval decision will have a number of actions which are allowed prior to commencement of the action and then there are other actions that are required after the commencement. For example, certain management plans quite often need to be provided prior to commencement. It is just a question of whether advance land clearing is allowed. We will come back on that specific question.
Mr Edwards : I will add, Senator, that the West Australian government has confirmed the availability of appropriate land in the acquisition process for offsets.
Senator LUDLAM: I find the whole concept of offsets a complete sham, to be honest. It is not as though you are going out and planting and growing banksia woodland; you are just promising not to flatten something else while destroying—
CHAIR: Sorry, Senator Ludlam—
Senator LUDLAM: That was fair and square are debating point. I will take that admonishment: it was indeed a debating point—a very reasonable one, but nonetheless. Perhaps this is something you take advice from the state on, but how do you investigate the availability of areas similar in quality to the 98 hectares that are proposed to be cleared? Is that fair and square a state responsibility or do you have some role in that?
Mr Knudson : Under the offsets policy, what we do is we take effectively a balance-sheet approach to it. We take a look at the ecological value of what is going to be impacted versus the ecological value of what is being proposed as an offset. Through a calculator that is publicly available, you can determine what is required as an offset. We will be actively involved in determining the adequacy of the offsets proposed under this project.
Senator LUDLAM: How do you offset the 5000 or so years of cultural connection to country by Aboriginal people?
Mr Knudson : Offsets are principally about impacts on habitat and species.
Senator LUDLAM: So there are no offsets for cultural connection the country?
Mr Knudson : We do have offsets sometimes for other matters beyond wildlife et cetera, but, as you are pointing out, it is rather difficult to quantify and sort out what those would look like. We have in the past had different examples where we have tried to undertake with the cooperation of the company different things that are of value to heritage and cultural impacts. To call them full-on offsets is not the intent of the offsets policy.
Senator LUDLAM: I will run the same page on that. Unless you have it right in front of you, could you on notice list the research for the impacts on the black cockatoos? That is a national environmental issue, one of your triggers. I would like a list of the research and reports used to determine the impacts on black cockatoos of this project in direct response to my letters outlining the flaws in the surveys that were conducted.
Mr Knudson : Certainly, Senator.
Senator LUDLAM: Can you break that down into plain English, Mr Edwards, since you were in fact the decision maker? How do you find it environmentally acceptable to flatten more than 90 hectares of banksia woodland for a four-lane freight freeway through a wetland?
CHAIR: Senator Ludlam, we have another two minutes for the department—
Senator LUDLAM: I am asking for a plain English interpretation—
CHAIR: Between you and Senator Waters you have had your time allocation. Do you have any other direct questions on this?
Senator LUDLAM: That was a pretty direct question.
CHAIR: Would you consider putting other questions on notice?
Senator LUDLAM: I will do that.
Mr Knudson : Again, I come back to the points that Mr Edwards has raised. We will conduct a thorough investigation and look at avoidance mitigation and offset and then the decision for the delegate is whether the residual impacts, if there are any, are acceptable. That is what the act requires and that is the process we would have gone through.
Senator LUDLAM: We will agree to disagree. Thanks, chair.
Senator BACK: Mr Edwards, you are aware that the area in question was a part of the original Stephenson Hepburn plan for road networks in Perth going back to the 1960s on the land over which we speak?
Mr Edwards : Yes.
Senator BACK: I have an article from the newspaper in Perth from yesterday in which a Mr Martin Stewart, a resident of Willetton, said that he and his wife bought in 1985 and: 'When my wife and I bought our land, clearly marked on the map was the route of the Roe Highway. We duly noted it, bought the land anyhow within 300 metres of the proposed highway.' As part of your approval process, did you or any of your officers walk on the land that is particularly in question from a sensitivity point of view and so-called wetlands?
Senator LUDLAM: 'So-called'?
Senator BACK: I am about to come to that, Senator Ludlam.
Mr Edwards : My understanding is that we have our officers in that area. I have been—
Senator BACK: Sure. The reason I ask the question is that, of all federal members or senators, my office is closest to this, and I actually walked it this time last week. It is adjacent to Hope Road. The particular area under question is under high-tension power cables. To the north is wetland, to the south is wetland. In fact, Hope Road is between the proposed area and the wetland. I walked through it and I can assure you there was nothing wet or moist. My greatest risk was tiger snakes. The land was low-quality sand when I walked through. I walked about 500 metres, probably.
CHAIR: Is this the land under the high-tension power lines?
Senator BACK: Directly under the high-tension power cable. I am at a loss to know where the actual road is going over wetland. If the area I walked on is the wetland then I am anxious to know from you what I missed? There was no wetland. The other area that has just been mentioned is an area that has been an easement for this road since the 1960s. Am I correct in my assumption or am I wrong?
Mr Edwards : You are correct in that the road will not directly cross the wetland. So that is quite correct.
Senator BACK: Despite the fact that at considerable expense further engineering challenges and engineering options have been incorporated to build in such a way, if you like, that it will have minimal disturbance.
Mr Edwards : That is right. The proponents certainly have taken additional measures to make sure they can avoid the potential impacts on the surrounding environment.
Senator BACK: From North Lake Road through to Stock Road, clearly one can see the easement. There are no buildings. It is a disappointment in many ways that the original Stephenson Hepburn plan into Fremantle was obstructed initially in 2000 by the then member for Fremantle, McGinty, and then by the former minister MacTiernan in 2002 and 2004, when the Fremantle eastern bypass was actually rezoned residential away from its intention to take it into the port of Fremantle. Of course that land is now occupied. What we are facing today, in fact, is a circumstance where the entire project could have been done for about $250 million had it gone ahead and we are now looking at a figure over $1 billion. And indeed—
Senator LUDLAM: Chair, you have pulled the rest of us up for editorialising. Where is this heading?
CHAIR: You are quite right. Senator Back, that is a rather long commentary. If you could bring your question to a conclusion.
Senator BACK: I am simply asking whether my assumptions are correct. Having seen the land over which this bypass is to be placed, I know believe it is of little environmental sensitivity from a natural environmental perspective.
Mr Edwards : There are certainly some environmental values in that area. Again, we are required to assess that value and to place conditions in place that will minimise the impacts on matters of national environmental significance.
Senator Canavan interjecting—
CHAIR: One very quick question. We have now gone into the time for the Clean Energy Finance Corporation. You have had a fair go.
Senator CANAVAN: I realise that. I did not vote for the rules.
CHAIR: One quick question and then please put the rest on notice.
Senator CANAVAN: After Senator Waters' questions, I got interested in the statement of reasons. And I will put some on notice, out of respect for you, Chair.
CHAIR: Thank you.
Senator CANAVAN: In your statement here, which you released on 9 November, you say, 'The scope of this request'—the request to Adani—went well beyond what is required under the EPBC Act for a decision process and reflects the robust approach that has been applied to this process.' My question is: on what authority do you ask proponents for information beyond what is required, and if the information they then deliver is somehow deficient, under what authority could you penalise them for that if it is not required under the act?
Mr Knudson : The language in the act is fairly generic and is not nearly as specific as the request that we went out with. That is the basis on which that statement is made.
Senator CANAVAN: You said it went well beyond what is required—
Mr Knudson : Right—
Senator CANAVAN: Not vague—
CHAIR: Senator Canavan, please do not get into a debate.
Mr Knudson : The legislation says that the minister may have consideration to the environmental history of the proponent. It does not give any specificity as to the time period that it needs to be, the hierarchy of companies—
Senator CANAVAN: Those are your words, not mine: 'well beyond what is required'. So you obviously had some idea what was required, and you went beyond those, in the case of Adani.
Mr Thompson : Senator, the words to finish the statement, 'went well beyond what is required under the EPBC Act for a decision process' and so, as we have already pointed out, these provisions in the EPBC Act are things—environmental history—that the minister may have regard to. But there is flexibility in terms of what we ask.
Senator CANAVAN: On notice, could I get the original set of questions you asked Adani. I do not need the responses. I am not asking for anything confidential, just the questions you asked Adani. And for comparative purposes, could I have the questions you would have asked Rio Tinto in the case of South of Embley mine, and BHP in the case of Olympic Dam. I may put some others on notice as well.
CHAIR: Thank you very much.