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Wednesday, 11 December 2013
Page: 1534

Senator SINODINOS (New South WalesAssistant Treasurer) (18:18): I present a revised explanatory memoranda relating to the Environment Legislation Amendment Bill 2013 and I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—


This Bill provides legal certainty for past decisions made under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) relating to approved conservation advice and makes amendments to the EPBC Act and the Great Barrier Reef Marine Park Act 1975 (Cth) (the Marine Park Act) relating to turtles and dugong.

The EPBC Act provides a legal framework to protect and manage nationally and internationally important flora, fauna, ecological communities and heritage places.

More specifically, the EPBC Act protects Australia's native species by providing for the identification and listing of species, the development and use of conservation advice and recovery plans for listed species; and criminal offences relating to certain activities, including the killing or injuring of listed species without a permit.

The Marine Park Act also provides for the conservation of protected species through zoning, issuing of permits and implementation of plans of management. The Marine Park Act includes aggravated civil and criminal offences for killing or injuring a protected species which includes listed threatened, marine or migratory species under the EPBC Act.

The EPBC Act and Marine Park Act are well acknowledged for achieving a high level of protection for the environment. Nevertheless, the need for improvements has arisen as a result of recent case law and, separately, concerns were raised with me by the Member for Leichhardt, the Hon Warren Entsch, about ongoing illegal poaching and trading of turtles and dugong.

This Bill:

provides legal certainty for decisions up until 31 December 2013 that required the Minister to have regard to approved conservation advice for relevant threatened species or ecological communities; and

amends various sections of the EPBC Act and Marine Park Act to provide additional protection for turtles and dugong under those Acts.

The Bill will provide legal certainty to industry stakeholders and strengthen environmental protection for turtles and dugong.

Conservation Advice Amendments

Approved conservation advice contains information on key threats to a threatened species or ecological community and actions needed to aid the recovery of the species or ecological community.

The EPBC Act provides that the decision-maker must have regard to approved conservation advices in making certain decisions under the EPBC Act, for example, when making a decision about whether to approve an action.

The need for Schedule 1 of the Bill has arisen as a result of a recent Federal Court decision (Tarkine National Coalition Incorporated v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694). In that decision, the Federal Court declared an approval for a project invalid because the court found that the decision-maker did not have regard to a relevant approved conservation advice.

The Bill provides that if the Minister fails to have regard to conservation advices under the EPBC Act this will not invalidate anything, in respect of anything done by the Minister prior to 31 December 2013.

Importantly, the requirement to have regard to a relevant approved conservation advice has not been affected in any other way.

The provision applies to ensure that decisions before 31 December 2013 are not put at risk of being invalid. This will provide certainty for industry stakeholders with existing decisions and the projects that rely on those decisions. The provision does not apply to decisions made after 31 December 2013.

Turtle and Dugong Amendments

Turtles and dugong are highly regarded by Australians for their ecological value as well as their cultural and spiritual importance.

All six species of marine turtles found in Australian waters are listed as threatened under the EPBC Act, with loggerhead, leatherback and olive ridleys listed as endangered, while green, hawksbill and flatback turtles are listed as vulnerable. Dugong and turtles are also listed as both migratory and marine species under the EPBC Act. Further, turtles and dugong are protected species under the Marine Park Act.

The EPBC Act currently contains various criminal offences relating to the killing, injuring, taking, trading, keeping or moving of turtles and dugong where they are a listed threatened, migratory or marine species. Likewise, the Marine Park Act currently contains criminal offences and civil penalty provisions which apply to the taking of, or injury to, turtles and dugong where they are a protected species under that Act.

Concerns have been raised with me that the current penalty provisions in the EPBC Act and Marine Park Act are not high enough to protect turtles and dugong from the increasing threats of poaching, illegal hunting and illegal transportation and trade.

Accordingly, on 15 August 2013 the Government announced our 'Dugong and Turtle Protection Plan' which aims to protect the dugong and turtle population of Far North Queensland and the Torres Strait Islands. I acknowledge the considerable work that has already been undertaken by Indigenous communities and by Indigenous rangers to ensure the protection and sustainability of turtle and dugong populations.

As part of the Dugong and Turtle Protection Plan, we made a commitment to '[w]ithin six months .... introduce Federal legislation tripling the penalties for poaching and illegal transportation of turtle and dugong meat.' We also committed to support a specialised Indigenous ranger program for marine conservation along the far north Queensland Coast and for strengthened enforcement and compliance.

The Dugong and Turtle Protection Plan forms part of this Government's Reef 2050 Plan to ensure that we have long term and sustainable management of the Great Barrier Reef.

The Bill implements this policy commitment by amending the EPBC Act and the Marine Park Act to increase criminal and civil penalties for:

killing, injuring, taking, trading, keeping or moving a turtle or a dugong in a Commonwealth marine area; and

taking or injuring turtles and dugong within the Great Barrier Reef Marine Park.

The increased penalties will deter people from committing offences or breaching civil penalty provisions under the Acts, thereby providing additional protection for turtles and dugong from the threats of poaching, illegal hunting and illegal transportation and trade.

Under the Native Title Act 1993 (Cth), native title holders have a right to exercise native title rights to harvest marine turtles and dugong for the purpose of personal, domestic, or non-commercial communal needs. These native title harvesting rights will not be affected by the Bill.

This Bill demonstrates the Australian Government's commitment to the conservation of turtles and dugong and, as part of the Government's Reef 2050 Plan, strengthens our capacity to preserve the Great Barrier Reef as an important feature of national and world heritage for future generations.



The purpose of the Infrastructure Australia Amendment Bill 2013 is to strengthen the role of Infrastructure Australia, as an independent, transparent and expert advisory body through a change in its governance structure and through better clarification of its functions.

This Government is committed to ensuring that Australia has the productive infrastructure we need to meet the challenges ahead.

Australia's future growth will be significantly influenced by our capacity to deliver more appropriate, efficient and effective infrastructure and transport. Investment in nationally significant infrastructure is central to growing Australia's productivity and improving the living standards of Australians now and in the future.

To maximise productivity improvement through investment, funding must flow to projects that yield the highest benefits. Therefore, it is critical to base project selection on rigorous analysis and sound planning to avoid wasteful investment. The Government recognises that Australia needs improved planning—coordinated across jurisdictions—to underpin investment decisions and regulatory reforms.

We are, therefore, focussed on long term planning based on robust, evidence based findings through a greater understanding of the critical issues facing Australia's infrastructure and land transport system.

While the Government fully supports Infrastructure Australia in its role as a key advisor to government on infrastructure project and policy reforms, it is committed to strengthening it by restructuring its governance, clarifying the scope of its responsibilities and entrenching its role as a key advisor to government.

Infrastructure Australia was established by the former Government in 2008 as an independent advisor to governments in an effort to eliminate the short-term cycle in project prioritisation and to develop a national view on infrastructure priorities and policies.

Infrastructure Australia, however, has not been successful in fundamentally changing the way projects are identified as national priorities. Whilst it has delivered priority project lists, projects are derived from state and territory government project proposals and the prioritisation is based on the extent to which the project business case is advanced rather than the extent to which the project will contribute to improved national productivity.

Moreover, the current structure of Infrastructure Australia does not provide the degree of independence and transparency needed to provide the best advice to Government about the infrastructure priorities that will reverse Australia's productivity slide.

The bill will re-establish Infrastructure Australia as a separate entity under the Commonwealth Authorities and Companies Act 1997, which will provide for an independent governing entity that is both legally and financially separate from the Commonwealth.

It will strengthen its independence, improving Infrastructure Australia's ability to build strong relationships with State and Territory Governments and industry, which are collectively responsible for delivering and managing much of Australia's infrastructure assets.

Notwithstanding the proposed changes, Infrastructure Australia will remain an advisory body only. It will not be the decision-maker in terms of funding allocation. That responsibility will remain with governments.

The change in governance structure will allow Infrastructure Australia to better demonstrate transparency and rigour in its prioritisation of projects and its advice on policy reforms while facilitating a level of independence from governments.

The changes to Infrastructure Australia's governance structure include:

abolishing the Infrastructure Australia Council and the position of Infrastructure Coordinator and establishing an Infrastructure Australia Board as a separate entity under legislation, with the Board members appointed by the Minister for Infrastructure and Regional Development in consultation with the Prime Minister.

improving reporting arrangements, with the Board reporting to the Minister for Infrastructure and Regional Development; and

establishing a Chief Executive Officer position that will be appointed by and report to the Board, and would be responsible for delivering Infrastructure Australia's functions including managing its resources and appointing staff as appropriate.

Improvement in the quality and transparency of advice is expected to assist governments in its investment decision making, ensuring funding is directed to projects that return the greatest productivity improvement.

In respect of the Board, the breadth of skills and experiences of the Board members will be the same as is currently the case for the Infrastructure Australia council and the existing council members. They will also be considered for re-appointment to the Board.

In addition, the Board will be required to produce an annual report to the Minister for Infrastructure and Regional Development, which will be made available to the Council of Australian Governments. The report will detail Infrastructure Australia's achievements, report on progress against its deliverables and its findings in respect to its policy reform analysis; and set out the forward work programme.

This bill also refines and clarifies the functions of Infrastructure Australia thereby better enabling the organisation to focus its resources to delivering the Government's reform programme in the timeframes required and in a manner that will achieve the desired outcome.

The Government's proposed changes to enhance Infrastructure Australia's existing functions include:

   (a) conducting evidence based audits of Australia's current infrastructure asset base, in collaboration with State and Territory governments, which would be revised every five years;

   (b) developing in 2014 a fifteen year infrastructure plan for Australia, with this plan being revised every five years:

      (i) the plan is to clearly specify infrastructure priorities at national and state levels, based on rigorous and transparent assessment;

      (ii) the plan is to include clearly defined service standards for project delivery, identify short and long term productivity gains as well as any complementary projects required to maximise productivity gains;

      (iii) the plan will recommend infrastructure projects on the basis of a transparent and rigorous cost benefit assessment of their viability;

      (iv) a project pipeline should clearly articulate a timeframe in which projects will be brought to market commencing with those projects of highest productivity value;

      (v) this work is to be developed in close consultation with State and Territory Governments, but should not solely rely on submissions from State and Territory Governments and third parties;

   (c) review all projects seeking Commonwealth funding worth more than $100 million (including transport, water, telecommunications, energy, health and education sectors and excluding Defence projects) and publish the reasons for its decisions.

Infrastructure Australia, in undertaking its functions, will be required to take into account broader economic considerations such as environmental sustainability and safety issues.

The recommended changes to Infrastructure Australia's governance structure and the additional functions will be met from within the existing appropriation for Infrastructure Australia.

Furthermore, as the proposed amendments to the governance structure of Infrastructure Australia are mechanical in nature, there are no regulatory or financial impacts on business and the non-for-profit sectors.

In terms of consultation, the Government has consulted with Commonwealth government agencies, Infrastructure Australia, key industry infrastructure stakeholders and state jurisdictions over the last twelve months.

Changing Infrastructure Australia's governance structure by abolishing the Infrastructure Coordinator role within the legislation with a Chief Executive Officer position, will require a consequential amendment to the Income Tax Assessment Act 1997 (ITA Act).

Under the ITA Act, the Infrastructure Coordinator is responsible for designating infrastructure projects eligible for the tax loss incentive. The bill provides for a suitable person or persons to be determined by the Minister for Infrastructure and Regional Development, in consultation with the relevant Treasury Portfolio Minister, to fulfil this role.

This change will need to occur simultaneously with amendments to the Infrastructure Australia Act 2008 to ensure the function maintains its authority. The proposed consequential changes have been developed in consultation with the Treasurer, the Hon Joe Hockey MP who has legislative responsibility with the ITA Act.

In summary, the Government is committed to broadening the current infrastructure reform agenda in collaboration with jurisdictions and industry to improve productivity and drive economic growth.

The Government's infrastructure reforms aimed at reducing duplication, streamlining approval processes, improving planning and coordination across all levels of government and stimulating investment are critical in a fiscally challenged environment so that we can maximise our current resources and thereby minimise the pressure to rely entirely on investment as a means to raise productivity.

The reform to Infrastructure Australia is a key component of this broader reform package and is critical in better enabling it to deliver quality independent advice. The Government will rely on this advice when considering priority projects, which is important to improving productivity.

The Government will remain focussed on delivering critical infrastructure, ensuring we are getting value-for-money for our investments and will be dedicated to embracing and increasing innovation in project delivery.

The Government is committed to building the infrastructure of the 21st Century and these reforms to Infrastructure Australia will help us in achievement of this goal.

The Government will lead the way, but we recognise that to drive this change, we must be in partnership with the construction and investment communities. This co-investment of not only capital, but of shared will and vision, will be the basis for building our nation and improving the living standards of our people.



The Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013 amends the Migration Actto remove the criterion for the grant of a Protection visa on the basis of complementary protection, and to remove other related provisions.

Complementary protection is the term used to describe a category of protection for people who are not refugees as defined by the Refugees Convention but who also cannot be returned to their home country, because there is a real risk that they would suffer a certain type of harm that would engage Australia's international non-refoulement obligations under the Convention Against Torture, and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR), namely:

arbitrary deprivation of life;

having the death penalty carried out;

being subjected to torture; or

being subjected to cruel, inhuman or degrading treatment or punishment.

The complementary protection criterion currently in the Act, having commenced on 24 March 2012, allows consideration of claims raising Australia's non-refoulement obligations under the CAT and the ICCPR as part of the Protection visa process and allows a Protection visa to be granted if those obligations are engaged and other visa requirements are met. This is in addition to the consideration of the Refugees Convention criterion.

The government has always opposed the inclusion of complementary protection in the Protection visa framework. It is the government's position that it is not appropriate for Australia's non-refoulement obligations under the CAT and the ICCPR to be considered as part of a Protection visa application under the Migration Act. Such a measure creates another statutory product for people smugglers to sell.

In saying this, the bill does not propose to resile from or limit Australia's non-refoulement obligations, nor is it intended to withdraw from any Conventions to which Australia is a party. Australia remains committed to adhering to our non-refoulement obligations under the CAT and the ICCPR. Anyone who is found to engage Australia's non-refoulement obligations under these treaties will not be removed from Australia in breach of these obligations. However, determining the appropriate mechanism for considering complementary protection claims is a separate issue.

Introducing the complementary protection criteria into the Protection visa framework goes beyond the requirements of the Refugees Convention. Under the previous government, this created a new channel for asylum seekers to gain access to a permanent Protection visa outcome even though they were found not to be a refugee.

Since the commencement of the complementary protection provisions on 24 March 2012 only 57 applications have satisfied the requirements for the grant of a Protection visa on complementary protection grounds. This begs the question as to why it was necessary to introduce complementary protection into a statutory framework which required a complementary protection assessment to be undertaken for every asylum seeker. This was a costly and inefficient way to approach the issue given the small number of people who meet the complementary protection criterion.

In fact, by far the greatest proportion of people who engage Australia's protection obligations are currently captured under the Refugees Convention. The interpretation of the Refugees Convention grounds has evolved to encompass wide ranging protection issues where a person's claims are able to form a nexus to the Refugees Convention, including such examples as women fleeing 'honour killings' and female genital mutilation.

On the other hand, in a number of cases that have been found to meet the complementary protection criteria, people who have committed serious crimes in their home countries, or people who are fleeing their home countries due to their association with criminal gangs or their involvement in blood feuds, have been found to engage protection.

Australia accepts that the position under international law is that Australia's non-refoulement obligations under the CAT and the ICCPR are absolute and cannot be derogated from. However, there is no obligation imposed upon Australia to follow a particular process or to grant a particular type of visa to those people for whom non-refoulement obligations are engaged. This is particularly the case where people are of security or serious character concern and they do not meet the criteria for grant of a Protection visa.

If a person cannot be returned to their home country, the way to resolve the person's status will be to rely on the Minister for Immigration and Border Protection's personal and non-compellable intervention powers to consider granting a visa. This will be the case regardless of whether a person of security or character concern has been assessed against the complementary protection criterion in the Migration Act or as part of an administrative process.

The complementary protection provisions that were introduced in the Migration Act by the previous government are complicated, convoluted, difficult for decision-makers to apply, and are leading to inconsistent outcomes. Moreover, while the intention was to interpret and implement Australia's non-refoulement obligations under the CAT and the ICCPR without expanding the obligations in a way that goes beyond current international interpretations, the courts have since broadened the scope of the interpretation of these obligations beyond that which is required under international law.

For example, the risk threshold test for assessing whether a person engages Australia's complementary protection obligations has this year been lowered to the same 'real chance' threshold as under the Refugees Convention. Another effect of the court decisions is that even where a person's home country has a functioning and effective police and judicial system, in order for Australia to conclude that that country will in fact seek to, and manage to protect the person from the risk of harm, the protection by that country's authorities must reduce the level of harm to below that of a 'real chance'. The 'real chance' test is a very low bar and lower than required under the CAT and the ICCPR. The court's interpretation of who should be provided complementary protection has transformed provisions intended to be exceptional into ones that are routine and extend well beyond what was intended by the human rights treaties.

Through removing the complementary protection criterion from the Migration Act, it is the government's intention to re-establish the consideration of complementary protection issues within an administrative process similar to that which was undertaken prior to the enactment of the complementary protection legislation. This consideration will happen either as part of pre-removal procedures which are undertaken by departmental officials to assess whether the removal of an asylum seeker could engage Australia's non-refoulement obligations or through the use of the Minister for Immigration and Border Protection's discretionary and non-compellable intervention powers under the Act.

Considering complementary protection issues under an administrative process allows the government to regain control over Australia's protection obligations and assess whether a person's specific circumstances engage Australia's non-refugee non-refoulement obligations, as interpreted by the Government in accordance with international law. This will allow the Minister for Immigration and Border Protection to consider a range of options for resolving the person's immigration status including the consideration of the exercise of the Minister for Immigration and Border Protection's personal and non-compellable public interest powers under the Act to grant either a temporary or a permanent visa.

Assessing Australia's non-refugee non-refoulement obligations within an administrative process will demonstrate Australia's continued commitment to adhering to its protection obligations as it gives more scope to provide protection in different ways. The Minister for Immigration and Border Protection's personal powers have the advantage of being able to deal flexibly and constructively with genuine cases of individuals and families whose circumstances are invariably unique and complex, and who may be disadvantaged by a rigidly codified criterion.

It will allow the Minister for Immigration and Border Protection to exercise his or her intervention powers to grant the most appropriate visa dependent upon the individual circumstances of the case by taking into consideration not only Australia's non-refoulement obligations, but also Australia's broader humanitarian considerations, in an administrative process. This is particularly relevant where people may be caught up in situations of civil strife and unable to return home in the short term.

By re-establishing an administrative process it is the government's intention to ensure that where a person raises claims that are found to engage Australia's non-refoulement obligations under the CAT and the ICCPR they will not be removed from Australia in breach of those obligations but rather dealt with in the most appropriate manner to resolve their case.

The bill will also make a range of consequential amendments to the Migration Act.

Amendments to the Migration Regulations will also be required to remove complementary protection criteria from the Protection visa subclasses.

Debate adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.