Senator BOLKUS (12:11 PM) —by leave—I move opposition amendments Nos 8 and 9:

(8) Clause 17, page 20 (lines 5 to 12), omit paragraphs (a) and (b), substitute:

(a) a provision of a law of a State (other than an excluded State) or of a law of a Territory (other than an excluded Territory) is necessary for the implementation of an NEPM; and

(b) apart from this subsection, the provision would not apply to the carrying on of an activity by the Commonwealth or a particular Commonwealth authority;

(9) Clause 17, page 20 (lines 23 to 26), omit subclause (2).

What we seek to do here with opposition amendments Nos 8 and 9 is to delete the clauses that the government proposes in respect of the general application of state provisions and to replace them with the clauses that were present in the 1996 draft of the bill, the bill of the previous government.

Basically, what we are addressing here is the concern of both the New South Wales and Victorian governments, the EPAs of those two states, and of some members of the Senate committee on the legislation. For instance, the New South Wales government, in its submission to the Senate Environment, Recreation, Communications and the Arts Legislation Committee earlier this year, said:

The bill appears to reflect a Commonwealth decision not to allow state laws to apply of their own force in accordance with Henderson's case but rather to set up an inconsistency between those laws and the Commonwealth law that will ensure, subject to Commonwealth law, that the Commonwealth law prevails.

There is concern in the states that the developments in the common law, particularly in Henderson's case, are being overridden by the government's provisions in respect of this particular clause. The concern is essentially, as the New South Wales government said, that the bill's various exclusions, often qualifications on the application of state laws to Commonwealth activities, give the Commonwealth great scope to pick and choose which, if any, state laws it will apply to Commonwealth activities. There is a risk that this will result in a piecemeal Commonwealth approach to implementation of NEPMs.

The concern there from New South Wales is that we are setting up a pick and choose regime contrary to and in fact curtailing the operation of the Commonwealth law. It is a recipe for ad hoc decision making. It is not immediately clear from the legislation which parts of state legislation are implementing NEPMs. As I said, it was not only New South Wales but also Victoria and its EPA representatives who were concerned about this particular provision. What we would argue is that you allow a general application rather than by declaration of the state legislation, of course recognising that the Commonwealth has a myriad of measures through which to curtail such operation. The concerns raised by the two major states are important in this matter, and our amendment seeks to address those concerns.