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Monday, 17 June 2013
Page: 3145


Senator BIRMINGHAM (South Australia) (21:08): I thank Senator Back for his contribution. I think it is important that the chamber consider the strange inconsistencies that the application of the provisions that the opposition is seeking to excise from the legislation will put in the EPBC Act, because the EPBC Act already has quite detailed conditions for the making of bilateral agreements and the prerequisites for making them. They are outlined in the EPBC Act under subdivision B of division 2 of part 5 of chapter 3. These are quite detailed prerequisites that were put in place, some more so than others. But I think, once again, what these demonstrate—and I will go through them in a moment—is that the government's bill was just a rushed job. If the government had presented to the House of Representatives a complete package that had the appropriate prerequisites for striking bilateral agreements, then we would be looking at something that reflected the rest of the EPBC Act.

Currently, within the EPBC Act, section 51 covers how bilateral agreements relating to declared World Heritage properties might be struck. Section 51A contains the process for how agreements relating to natural heritage places can be struck. Section 52 details exactly how agreements relating to declared Ramsar wetlands can be struck. Section 53 deals with agreements relating to listed threatened species and ecological communities. These sections contain quite stringent conditions and provide examples of how the government could have set out a formula or process by which agreements relating to the water trigger could equally have been struck. Let us have a look at what a good model might look like. Section 53 states:

(1) The Minister may enter into a bilateral agreement containing a provision relating to a listed threatened species or a listed threatened ecological community only if:

(a) the Minister is satisfied that the provision is not inconsistent with Australia's obligations under:

   (i) the Biodiversity Convention; or

   (ii) the Apia Convention; or

   (iii) CITES; and

(b) the Minister is satisfied that the agreement will promote the survival and/or enhance the conservation status of each species or community to which the provision relates; and

(c) the Minister is satisfied that the provision is not inconsistent with any recovery plan for the species or community or a threat abatement plan; and

   (ca) the Minister has had regard to any approved conservation advice for the species or community; and

(d) the provision meets the requirements (if any) prescribed by the regulations.

I read this into the Hansard because often in these debates, when people talk about agreements and powers of referral with the states, they make it sound like it is just being handed over to the states and whatever happens happens from there, but there are actually very tight conditions in place. In fact, they are far tighter than in section 53(1), which I just read, because section 53(2) provides even more prescriptive conditions:

(2) The Minister may accredit a management arrangement or an authorisation process under section 46 for the purposes of a bilateral agreement containing a provision relating to a listed threatened species or a listed threatened ecological community only if—

the minister can only enter into such an arrangement if—

(a) the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with Australia’s obligations under:

   (i) the Biodiversity Convention; or

   (ii) the Apia Convention; or

   (iii) CITES; and

(b) the Minister is satisfied that the management arrangement or authorisation process will promote the survival and/or enhance the conservation status of each species or community to which the provision relates; and

(c) the Minister is satisfied that the management arrangement or authorisation process is not inconsistent with any recovery plan for the species or community or a threat abatement plan; and

(d) the Minister has had regard to any approved conservation advice for the species or community.

So there are extraordinarily strict and challenging criteria that the minister must satisfy before such accreditation processes or bilateral agreements can be entered into. As I said, section 53(2)(b) states that the minister can enter into such an arrangement only if they believe it will 'promote the survival and/or enhance the conservation status of each species or community to which the provision relates'. These are incredibly tough, and they continue in section 54, for agreements relating to migratory species, and in section 55—and I note that I was wrong in an aside I made before: agreements relating to nuclear actions are covered here, although covered in the negative sense, where:

The Minister must not enter into a bilateral agreement, or accredit for the purposes of a bilateral agreement a management arrangement or an authorisation process, containing a provision that … relates to a nuclear action …

So they are covered in the legislation but covered in a way that does specifically exclude nuclear actions. That is the one action that is excluded, until of course we have Mr Windsor's amendments. I highlight and detail how this section of the act works because often it is criticised, when people talk about using this section of the act, as a throwaway of responsibility to the states. Clearly it is far from it. Clearly they are very specific conditions that can be put in place. I highlight it because, if the government were serious about its new water trigger, we would have in the legislation before us a similarly detailed list of conditions under which the trigger could be assessed by state governments, but they would be conditions that would be very tough. Obviously, as I have said before in relation to the coalition's position on these matters, it is critically important that these matters of national environmental significance are upheld and the Commonwealth government of the day, whatever their political stripes, should be working to make sure they are upheld. We believe the best way to do that is to ensure that you have efficiency, that you eliminate duplication, but you ensure in regard to the referrals that could occur that you spell out the conditions and allow the system to work as seamlessly as possible.

The minister said in response to my comments before that, because this is a new matter, a new trigger, in the first instance it is appropriate to work through the relevant issues 'before we seek to delegate such powers'. They were the minister's words the last time she spoke. That would imply that the government believes there is a possibility to delegate such powers. In response to acknowledging that possibility, I would like the minister to explain to the Senate under what time line does the government believe it is appropriate to consider the delegation of such powers? Is it a fixed number of years? Is it a fixed number of controlled actions to be considered? How will the government decide when it is appropriate to consider the delegation of such powers? Why is it that the government still thinks, given it has abandoned that delegation elsewhere, that it may wish to delegate these powers? And importantly, why is it, if the government foresees a day when it might wish to delegate such powers, that it ties its hands behind its back today? It is nonsensical.

In any other area of the EPBC Act, except for the nuclear issues, the government could delegate such powers—it already could. Without the provisions which the coalition is seeking to remove from the bill before us, the government, when it decides at whatever point down the track it is appropriate to delegate such powers in relation to the water trigger, would be able to so negotiate. Instead, the government has tied its hands behind its back. When will the government be in a position to consider such delegation? Why is it specifically excluding the powers to be able to do so? Why has it not brought to the Senate provisions like those in section 53 or section 54 of the existing act, to spell out how such delegations could work in the future, so that we consider these matters in totality rather than find ourselves in a situation where the government is simply engaging in what appears to be a politically convenient act—politically convenient in terms of doing the deal with Mr Windsor, as well as being politically convenient in terms of trying to restrict the way the coalition may be able to enact its policy, should we win the election later this year, and try to pursue the application of a more efficient, more streamlined process for environment approvals which can be done in a way which maintains standards but reduces the costs facing industry? Minister, please enlighten the Senate when you say in the first instance, before we seek to delegate such powers, what is the type of time line the government is looking at and why is it that the government has in mind that it may delegate such powers, yet is excluding the provisions to do so. Indeed, what type of provisions would you expect to put in place to allow the delegation of such powers at a future juncture?