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Thursday, 16 May 2013
Page: 2846

Senator McKENZIE (Victoria) (16:03): I rise to contribute to the debate on the Environment Protection and Biodiversity Conservation Amendment Bill 2013. That is not to be confused with the EPBC Amendment Bill 2012. I have both reports here. They say slightly different things, I admit, from the government's perspective. Nonetheless, I am a member of the Senate Environment and Communications Legislation Committee and, throughout the inquiry into this piece of legislation, the committee received 235 submissions from across industry, environmental groups and community. There was a keen interest in discussing this particular matter.

The bill seeks to amend the EPBC Act by creating a new manner of national environmental significance under the act. Currently, there are eight matters of national environmental significance, including World Heritage properties, Commonwealth marine areas, wetlands, national heritage places and the like. The amendments go to set out requirements and civil offences regarding actions which could have a significant impact on water resources, from coal seam gas to large coalmining developments.

The impact of coal seam gas on regional communities is of great concern to the Nationals and the coalition generally. To get the balance right between farmers, community and the environment is paramount. It is summed up best by the Nationals leader, Warren Truss, in 2011, when he stated:

A properly managed coal seam gas industry represents an unprecedented opportunity for regional Australia. Poorly managed it could tick every box of a social and environmental disaster.

This is why we have developed some core principles around the development of the industry, in direct response to community concerns.

The core principles go to the heart of the concerns about inappropriate developments. I think Senator Joyce has already touched on these. Firstly, no coal seam gas development should proceed where it poses a significant impact on groundwater or surface water; it has to be safe for the environment. Secondly, prime agricultural land is our most precious asset; its value drives our regional communities and our export industry. We do not want to see any negative impact on that. Thirdly, regional Australia is home to many thousands of locals living in our towns, cities and districts. We think that the development of the coal seam gas industry needs to take the concerns of those householders into account. Fourthly, we believe landowners are entitled to appropriate returns for access to and use of their land that goes beyond mere compensation. Finally, there needs to be a recognition that, as regional communities are the areas contributing to the development of this resource, it is only fair that they receive a fair share of revenue generated by the industry so that they can reinvest that in their communities.

We have been upfront in outlining our desire for appropriate development of this industry, recognising that it also brings much needed jobs and economic stimulus to regional areas. But, again, I reiterate that it must be balanced. That is why we are not opposing this bill. However, there were numerous issues raised throughout the inquiry, which included several suggested amendments that the government could consider. They are sensible amendments, supported by both sides of this debate—those sides being environmentalists and industry.

Both recognise that there was no consultation in the construction of this bill—that is, with any of the groups involved: farmers, industry or environmental groups. That evidence is borne out in our Senate committee report. This suggests that once again the federal government has sought to play politics instead of being guided by principles. Look at how that particular strategy has gone so far: five years of politics ahead of policy and principles has resulted in bills requiring significant amendment and having unintended consequences, and a legislative agenda that reads like a stakeholder wish list—I would cite the latest tranche of the Fairwork amendments as an example—as the national long-term interest of this nation is butchered on the altar of the Labor Party's desperation to cling onto power. The desire to cling on to power overrides good policy process. There is no regulatory impact statement with this bill; there was no consultation with stakeholders, states, industry, famers or environmental groups. The minister himself stated six months ago that the Commonwealth government had no constitutional powers to make such laws that would seek to regulate coal seam gas—and he was right. Yet the Greens foreshadowed amendments using the executive power under our Constitution, and I look forward to Senator Waters moving those later on in this debate so we can have a conversation about them. But it was clear that the government consulted with someone—their powerful allies and co-conspirators in the ALP government's longevity and negative legislative agenda. These powerful allies in this game of national and moral fiscal malaise are none other than Tony Windsor, the member for New England, and the Greens.

This bill and its process of development has been categorised by haste, lack of consultation, lack of a regulatory impact statement and lack of clarity, which was raised over and over again throughout the inquiry. There is ambiguity about the impact it will have on the process of environmental legislative reform that is already underway that states are having a national conversation about on how we can get better at this as a team. Mr Windsor's determination to support them is a perfect example of this government's determination to hang on to power for as long as it can. It is a very powerful alliance, indeed.

Nobody disputes the importance of getting the balance right. What is a point of debate, as the report rightly states in the government majority section, is that the regulation of coal seam gas is 'primarily a matter for states'. This bill supersedes the cooperative process already in place and already being conducted to deal with the issues of coal seam gas developments. That is precisely why the national partnership on coal seam gas and large coalmining proposals is important—a COAG process working collaboratively with the states to bring state environmental laws up to federal standards without impacting on their sovereignty. It has been, according to stakeholders in the process, circumvented by this bill. I refer specifically to the evidence given to the committee by the NFF representative Ms Kerr.

This process has been time consuming and people have approached it in good faith, but they are now left wondering as to the status of the review due next year and what role that will play. I know the Greens do not like state parliaments. Our federated structure is an anathema for them—ironic, really, as they sit here in the states' chamber in federal parliament.

As Senator Birmingham noted in his contribution to this debate, the coalition supports the work of the independent scientific committee as it provides up-to-date advice to both state governments, who are tasked with approving and assessing coal seam gas developments, and, indeed, the federal minister on matters deemed appropriate. This is a good initiative; we support it. To make the coalition out to be environmental vandals because we support scientific oversight and a collaborative approach to the national partnership on coal seam gas which brings the stakeholders together makes the hypocrisy of the Greens and Mr Windsor clear.

I recognise that the development of the coal seam gas industry in New South Wales is a significant issue to local landowners and communities; however, using the federal EPBC Act as a method for riding roughshod over the rights of states to regulate what occurs within their boundaries is an abuse of Commonwealth power. As Fiona Simson, President of NSW Farmers, stated to a question about her preferred option for how to deal with the issues of coal seam gas development in New South Wales:

My preferred option, and our association's preferred option, remains that the state government provide the protections that it promised it would prior to coming into office. We feel that that could quite easily happen through some of the instruments are currently in place—by making the aquifer interference policy enforceable, for instance.

Mr Gregson from the New South Wales Irrigators' Council said:

I think it would be our preference if New South Wales were to revisit its perspective and make its good set of rules applicable to at least someone so that we do not have to have the difference between the two jurisdictions.

It is clear, I think, that harmonisation is the way forward, rather than regulating all to fix one.

It may be news to the Greens that some states have taken a different approach to mining development. I would like to highlight one such state involved in this debate which has taken a different approach, one reflective of the coalition's stance on the development of our regions with respect to the mining industry—my home state of Victoria. It will now be subject to additional legislation and regulation and will be unable, if the Windsor amendment is passed, to seek bilateral agreements with the Commonwealth simply because New South Wales could not get it right. There is no coal seam gas production in Victoria and still no confirmed commercial reserves. However, the Victorian government is taking a very careful approach to the issue of coal seam gas and is determined not to rush into anything. It will not put at risk the water aquifers, agricultural production and liveability that are the hallmarks of the magnificent regional areas of Victoria. It has taken a strong, responsible approach to managing issues associated with coal seam gas. While further work is being undertaken at a Commonwealth and state level to better understand and manage the prospect of coal seam gas development, the state coalition has taken decisive action to protect local communities, including: a hold on approvals to undertake hydraulic fracturing as part of onshore gas exploration; a hold on the issuing of new exploration licences for coal seam gas; and a ban on the use of BTEX chemicals in hydraulic fracturing in Victoria.

This action is in addition to Victoria's already tough regulatory framework that includes Victoria's environmental protection policy under the Environment Protection Act 1970, which does not allow discharge from exploration and mining activities that will pollute groundwater. The Victorian state government is responsibly investigating approaches to ensuring both ongoing gas supplies and energy security with respect to natural gas development. That includes unconventional sources such as tight gas, shale gas and coal seam gas.

While some in the community would like to see the government permanently ban these industries, the state government does not believe that is a responsible approach. Despite the potential economic benefits of unconventional gas, protection of the environment is the state government's first priority. It goes right against the claims of the Greens that somehow state governments are subject to a conflict of interest around the approval of coalmining activities in terms of the state royalties they collect. But the Victorian state government has taken the sensible approach by participating in the national partnership conversation and is looking at what has happened under previous and current governments in Queensland and New South Wales. It is looking at a way to better regulate the development of the coal seam gas industry, and particularly its impact on regional communities. To legislate for all and to regulate all because of the bad behaviour of a few undermines all the potential good that could come from appropriately developed coal seam gas projects.

I would like to briefly mention Labor's record in Victoria. Licences to explore for coal seam gas have existed in Victoria for the last 12 years. It was the former Labor government that granted those exploration licences. Over 70 per cent of the 24 current exploration licences were issued under the former Labor government. Fracking was last approved and undertaken under the former Labor state government in 2009. It is interesting that Senator Cameron is not here spruiking the track record of the New South Wales Labor government on this issue. I look forward to him arriving in the chamber and standing up for the decisions made by the former New South Wales state Labor government with respect to mining development and more specifically to coal seam gas development throughout regional New South Wales. And where are Queensland senators? I am looking—Senator Feeney, Senator Brown, but no Queensland senators from the Labor Party. Senator Waters, I am more than happy if you want to stand up and spruik former Premier Bligh's track record on approvals and assessment of coal seam gas projects in Queensland, but I am guessing you will not be wanting to do that. Correct. Any Queensland Labor senators should head on down. We would love to hear your take on coal seam gas mining project development approvals and assessments in Queensland.

It is a bit rich that this bill is before us now. The fact is the concerns outlined by Senator Birmingham and the issues canvassed throughout the committee's report are specific to some state governments and that was made very clear in the evidence, but not all state governments—and not even a majority of state governments, just a handful. Here we are legislating in an area where we do not know what the unintended consequences are. There is ambiguity around definitions, which I hope to get to. A number of issues were raised during the inquiry that are not dealt with in the bills or in the amendments before us. Regarding the issues raised, I will touch on three, and they are clarity, overriding state processes and unintended consequences.

Clarity in definitions is important, and it is particularly important when writing laws—because lawyers get paid a lot of money to argue about what various clauses and words mean. The definitions frame and define what and whom is covered by various pieces of legislation. Submitters from both sides of this debate were concerned about the lack of clarity in this bill. The specific classic was what defined 'a water resource' under this legislation. Was it any dry gully? Did it refer to any water resource? Apparently, it did. Tracey Winters had this to say:

But the effect of this bill is to extend water resources—for example, a dry gully, every dry gully in the country, because a watercourse is defined as every watercourse, whether it is flowing or not. So this bill would make every dry gully in the country a matter of national environmental significance.

Even so, the government's committee report stated that:

It is most unlikely that all dry gullies would be included.

But once it is law, it is law. While Senator Cameron and other senators who support the majority report into this piece of legislation might think that it is enough to put a line in a Senate committee report that it is unlikely that dry gullies would be considered a water resource under this piece of legislation, I would prefer to see that articulated in the bill, because once it is law it is law. I wonder what the perspective of our catchment management authorities, our local farmers and local councils would be if this were the case. I guess we can leave it for the lawyers to sort out.

There was no clarity either around whom is affected. What do large coalminers look like? A lack of transparency continued about how far the trigger should go. Should it cover other industries? I was particularly interested in this aspect. At the moment it only covered coal seam gas and large coalmining industries but it was of particular concern to the National Farmers Federation that this particular trigger could end up covering other types of regional industries. Apparently, according to Mr Knowles from Economists at Large, it should apply to other industries. It absolutely should. In fact, when he was asked to apply this trigger to agriculture, Mr Knowles said he thought it was a 'logical and equitable approach to take'.The whole push behind this is not just for coal seam gas and large coalmining developments but also for any industry's impact on a water resource, however that is defined. Why should the farmers in Western Australia or South Australia or Victoria or Tasmania be subjected to this ambiguity? Because the government needed once again the political support of Windsor and Waters. This was not one of the recommendations of the Hawke review—the massive review of the EPBC Act. It was not there. The experts did not find it there. It was not part of the government's response to the review. So, the government had the opportunity to say: 'You know what? We think we should do this. We think this should be how the EPBC should look.'

Did the government put it in their response? No, they did not. I may be cynical! The refusal to work with the states and stakeholders towards an agreed national response to the very real challenges that the coal seam gas industry and its development pose for regional communities changed when the politics changed. Waters and Windsor wanted it as a wedge—that is clear—and Burke brought it on.

The ACTING DEPUTY PRESIDENT ( Senator Fawcett ): Order! Senator McKenzie, I remind you to refer to members and senators by their correct titles.

Senator McKENZIE: Minister Burke brought it on. Clearly, we will be backing regional communities, as we always do. I have appreciated the opportunity to highlight once again this government's inept handling of the legislative process—the rushed and reckless approach to regulation as they conspire against the national interest and our institutions, and against their own stated objectives with respect to environmental legislation, in an effort to maintain their hold on power, hand in hand with their most complicit allies, Windsor and the Greens.

The ACTING DEPUTY PRESIDENT: I remind senators that at 4.30 the debate on this bill will be interrupted to move to general business.