- Home
- Hansard & Papers
- Legislative Council
- 10 November 2004
Threatened Species Legislation Amendment Bill
Printing Tips |
Print selected text
| Full Day Hansard Transcript
« Prior Item |
Item 6 of 40
| Next Item »
Page: 12442
In Committee
Consideration resumed from 9 November.
The Hon. IAN MACDONALD (Minister for Primary Industries) [11.11 a.m.]: I move Government amendment No. 5:
No. 5 Page 20, schedule 1 [67] (proposed section 126E), lines 7-12. Omit all words on those lines.
This amendment is linked with Government amendments Nos 1 to 9, about which I have spoken. The comments I made in relation to Government amendment No. 1 are appropriate and consequential to this amendment.
Mr IAN COHEN [11.12 a.m.]: The Greens do not support Government amendment No. 5. Greens amendment No. 25 seeks to replace "may" with "must" so that if the native vegetation package causes, or is likely to cause, the failure to conserve threatened species, removal of certification should be mandatory. If the package is failing, it needs a shock to the system to fix it. This power, of course, will have a precautionary impact and reduce the likelihood of the package failing in the first place. I believe it is important that Greens amendment No. 25 be supported, but in this case the Greens do not support Government amendment No. 5. I move Greens amendment No. 25:
No. 25 Page 20, schedule 1 [67], proposed section 126E, line 7. Omit "may". Insert instead "must".
This amendment addresses the suspension or revocation of certification. Rather than having the discretion to suspend or revoke the certification of the native reform package if it causes, or is likely to cause, the failure to conserve threatened species, for example, the Minister must suspend or revoke. It also provides a role for public submission on proposed suspension or revocation. I commend amendment No. 25 to the Committee.
The Hon. IAN MACDONALD (Minister for Primary Industries) [11.13 a.m.]: The Government opposes Greens amendment No. 25.
Amendment agreed to.
The Hon. IAN MACDONALD (Minister for Primary Industries) [11.15 a.m.], by leave: I move Government amendments Nos 6 and 7 in globo:
No. 6 Page 20, schedule 1 [67], line 14. Omit "or revoke".
No. 7 Page 20, schedule 1 [67], line 23. Omit "or following the revocation".
These amendments link in with amendments Nos 1 to 9, and as I have spoken in detail about them, I will leave it to the judgment of the Committee.
Mr IAN COHEN [11.15 a.m.]: Government amendments Nos 6 and 7 remove the word "revoke" from the Minister's power to decertify the native vegetation package, and the Minister is left with the option to suspend. While revocation may be necessary only very rarely, the Minister should have that option where significant improvements are necessary to the package. The Greens do not support Government amendments Nos 6 and 7.
The Hon. RICK COLLESS [11.16 a.m.]: These amendments, as I understand, remove the power of the Minister to revoke the biodiversity certification, but allow him to retain the right to suspend it if an audit by the Natural Resources Commission or an investigation by the director-general recommends the suspension or any other circumstances that the regulations allow for. The Opposition is concerned about the regulation provisions as there is very little parliamentary scrutiny of some regulations. As such, the Opposition will oppose these two amendments and a number of other amendments that flow from them.
Amendments agreed to.
Mr IAN COHEN [11.17 a.m.]: I move Greens amendment No. 26:
No. 26 Page 20, schedule 1 [67], proposed section 126E. Insert after line 37:
(5) The Minister is to give due consideration to any public submissions received by the Minister before forming an opinion for the purposes of this section.
I have already spoken to Greens amendment No 25, and the same applies to Greens amendment No. 26, particularly with the role for public submission on proposed suspension or revocation. I commend Greens amendment No. 26 to the Committee.
The Hon. IAN MACDONALD (Minister for Primary Industries) [11.17 a.m.]: The Government does not support this amendment. It is preferable for the existing provisions to remain in place and for suspension of the certification of an environmental planning instrument to occur only after the circumstances listed in proposed section 126E (4) have been met. It should be noted that there is a regulation-making power in subsection (4), which would allow other circumstances to be prescribed in the future, if that were deemed appropriate.
Amendment negatived.
The Hon. IAN MACDONALD (Minister for Primary Industries) [11.18 a.m.]: I move Government No. 8:
No. 8 Page 21, schedule 1 [67] (proposed section 126F), line 4. Omit "or revocation".
This amendment links in with Government amendment No. 1, about which I have spoken extensively, and the same comments are relevant to this amendment.
Mr IAN COHEN [11.18 a.m.]: The Greens do not support Government amendment No. 8.
The Hon. RICK COLLESS [11.19 a.m.]: The Opposition does not support Government amendment No. 8, for the same reasons I outlined in Government amendments Nos 6 and 7.
Amendment agreed to.
Mr IAN COHEN [11.19 a.m.]: I move Greens amendment No. 27:
No. 27 Page 21, schedule 1 [67], proposed section 126F, line 5. Insert "within 14 days" after "given".
This amendment deals with notices of the grant, or suspension or revocation, that must be given within 14 days. I commend the amendment.
The Hon. IAN MACDONALD (Minister for Primary Industries) [11.19 a.m.]: The Government supports this amendment. It requires notification of certification of the native vegetation reform package to be made in a timely fashion, rather than be open-ended.
The Hon. RICK COLLESS [11.29 a.m.]: The Opposition will not oppose the amendment.
Amendment agreed to.
Mr IAN COHEN [11.20 a.m.]: I move Greens amendment No. 28:
No. 28 Page 21, schedule 1 [67], proposed section 126F. Insert after line 9:
(2) The Minister is to keep a register containing copies of each notice of the grant of biodiversity certification under this Division and of any suspension or revocation of that certification.
(3) The register is to be open for public inspection, without charge, during ordinary business hours, and copies of or extracts from the register are to be made available to the public on request, on payment of the fee fixed by the Minister.
This amendment creates a register of certifications for public access. This is a basic transparency provision. I commend the amendment.
The Hon. IAN MACDONALD (Minister for Primary Industries) [11.20 a.m.]: The Government supports this amendment. It establishes a public register of notices granting biodiversity certification.
The Hon. RICK COLLESS [11.20 a.m.]: The Opposition will not oppose the amendment.
Amendment agreed to.
Mr IAN COHEN [11.21 a.m.]: I move Greens amendment No. 29:
No. 29 Page 21, schedule 1 [67], proposed section 126G, lines 13-16. Omit all words on those lines. Insert instead:
(1) The Minister may by order published in the Gazette confer biodiversity certification on an EPI if satisfied that the EPI, in addition to any other relevant measures to be taken, will lead to the overall improvement or maintenance of biodiversity values. Biodiversity values include threatened species, populations and ecological communities, and their habitats.
The bill creates a biodiversity certification process for environmental planning instruments. There should be an environmental test by which to test the EPI, not just complete ministerial discretion. This test is proposed to bring about overall improvement or maintenance of biodiversity values. Biodiversity values are defined to include listed species, populations or ecological communities, and their habitats. That could include all native species. It is the intention to focus, as a priority, on species, communities and populations listed in the Threatened Species Act. This applies a similar test to that used in the Native Vegetation Act, passed last year, which seeks the maintenance or improvement of environmental outcomes. I commend the amendment.
The Hon. IAN MACDONALD (Minister for Primary Industries) [11.22 a.m.]: The Government will support the amendment because it codifies in the Act the Government's stated intention. Our aim is to be able to certify an environmental planning instrument if the instrument and any other relevant measures will lead to an overall improvement or maintenance of biodiversity. It maintains the flexibility for issues to be resolved on a landscape-wide scale. Ministers will need to have regard to the issues listed in proposed section 126G (2) which—and I must emphasise this point—includes a requirement to consider the likely social and economic consequences of implementing the planning instrument. This is very much a key part of the bill, and it is how the Government will ensure that balanced planning outcomes are achieved, ensuring that jobs and housing can continue to be provided and biodiversity can be better served.
The Hon. RICK COLLESS [11.22 a.m.]: The Opposition will not oppose this amendment.
Amendment agreed to.
Mr IAN COHEN [11.23 a.m.]: I move Greens amendment No. 30:
No. 30 Page 21, schedule 1 [67], proposed section 126G. Insert after line 16:
(2) For the purposes of this section, relevant measures include, but are not limited to, the following:
(a) the reservation of land under Part 4 of the NPW Act or the entering into of a permanent conservation agreement relating to the land under that Act,
(b) the entering into of a permanent trust agreement in relation to land under the Nature Conservation Trust Act 2001,
(c) long-term measures to rehabilitate or restore biodiversity values on land.
This amendment outlines relevant additional measures that may provide an environmental benefit beyond the environmental planning instrument that is certified under amendment No. 29. This allows other matters, such as a new national park or permanent voluntary conservation agreement, to be undertaken. I commend the amendment.
The Hon. IAN MACDONALD (Minister for Primary Industries) [11.24 a.m.]: The Government does not support this amendment. It is unnecessary and is already covered in proposed section 126G (2).
The Hon. RICK COLLESS [11.24 a.m.]: The Opposition will oppose the amendment.
Amendment negatived.
Mr IAN COHEN [11.25 a.m.]: I move Greens amendment No. 31:
No. 31 Page 21, schedule 1 [67], proposed section 126G. Insert after line 16:
(2) Biodiversity certification must not be granted by the Minister unless the Minister is satisfied the EPI meets the following criteria for certification:
(a) the EPI includes a list of threatened species, populations and ecological communities likely to occur in the area to which the EPI relates,
(b) the EPI includes an assessment of the likely impact of the EPI on threatened species, populations and ecological communities, and their habitats, including (where known) the factors threatening or benefiting survival and recovery and an assessment of their existing conservation status and viability,
(c) the EPI includes an assessment that takes account of the principles of ecologically sustainable development,
(d) the EPI includes a description of any conservation outcomes proposed in the EPI and how the conservation outcomes will promote the conservation of threatened species, populations and ecological communities.
This amendment sets out the minimum information needed in a certified plan. It includes the need for a list of the threatened species in an area, an assessment of the impact of the EPI on those species, and an assessment against the principles of ecologically sustainable development and how the conservation outcome in the EPI will benefit the threatened species. Without this being specified, there will be no minimum benchmark on what an EPI contains before it is certified. I commend the amendment.
The Hon. IAN MACDONALD (Minister for Primary Industries) [11.26 a.m.]: The Government is not prepared to support this amendment. It would set the bar so high that it would be most unlikely that an environmental planning instrument could ever be certified for the purposes of this Act. As such, the amendment would undermine a key feature of this legislation, and it will be opposed.
The Hon. RICK COLLESS [11.25 a.m.]: The Opposition opposes the amendment.
Amendment negatived.
Mr IAN COHEN [11.26 a.m.]: I move Greens supplementary amendment No. 2:
No. 2 Page 21, schedule 1 [67], proposed section 126G. Insert after line 35:
(3) If any part of the area to which an EPI relates is subject to a recovery plan, biodiversity certification in respect of the EPI must not be granted or extended unless the EPI makes provision, consistent with the objects of this Act, for at least the same level of protection and conservation in relation to threatened species, populations and ecological communities, and their habitats, as the recovery plan.
(4) If any part of the area to which an EPI relates is subject to another environmental planning instrument (the other EPI), biodiversity certification in respect of the first-mentioned EPI must not be granted or extended unless the EPI makes provision, consistent with the objects of this Act, for at least the same level of protection and conservation in relation to threatened species, populations and ecological communities, and their habitats, as the other EPI.
This amendment ensures that when biodiversity certification is offered to an EPI, the EPI provides at least the same level of protection as existing protection measures. It mirrors existing provisions in the Native Vegetation Conservation Act. I commend the amendment.
The Hon. IAN MACDONALD (Minister for Primary Industries) [11.27 a.m.]: The Government opposes Greens amendment No. 2. This amendment would seriously undermine the ability of the Minister to certify an environmental planning instrument. Indeed, it is no exaggeration to suggest that, if the amendments were adopted, it would be virtually impossible for an EPI to be certified. That would prevent threatened species issues from being resolved through strategic planning, and so a fundamental aim of the bill would be undermined. Greens amendment No. 29, which the Government supported and has been carried, is a preferable method of ensuring that certification of an EPI occurs in circumstances where threatened species will be adequately protected.
The Hon. RICK COLLESS [11.28 a.m.]: The Opposition will not support this Greens amendment.
Mr IAN COHEN [11.29 a.m.]: Madam Chair, there seems to have been a procedural blunder. I seek leave to withdraw Greens supplementary amendment No. 2.
Leave granted.
Amendment withdrawn.
Mr IAN COHEN [11.29 a.m.]: I move Greens amendment No. 32:
No. 32 Page 21, schedule 1 [67], proposed section 126G. Insert after line 35:
(3) In deciding any matter under this section the Minister is to have regard to the objects of this Act.
In deciding on certification the Minister is to have regard to the objects of the Act. I commend Greens amendment No. 32. I understand that the Minister is likely to support it.
The Hon. IAN MACDONALD (Minister for Primary Industries) [11.29 a.m.]: I am carefully evaluating this issue. The amendment is acceptable to the Government. Having regard to the objects of the Act when deciding whether to certify an environmental planning instrument is something that would happen in any event.
The Hon. RICK COLLESS [11.30 a.m.]: It is my view that when the Minister is deciding any matter under any section of the Act he must have regard to the objects of the Act. In computer language it seems to me a bit like a circular reference: we are going round and round in circles. I cannot see any point to the amendment and, as such, we will oppose it.
Amendment agreed to.
Mr IAN COHEN [11.30 a.m.], by leave: I move Greens amendments Nos 33 to 43 in globo and ask that questions be put in relation to them seriatim:
No. 33 Page 23, schedule 1 [67], proposed section 126J. Insert after line 17:
(3) The Minister must not extend the period of biodiversity certification of an EPI unless, prior to granting the extension, the Minister:
(a) by notice published in a newspaper circulating generally throughout the State, invites persons to make written submissions to the Minister on the proposed extension, and
(b) considers any written submissions received before the closing date specified in the notice for the making of submissions (being a date that is not less than 30 days after the date the notice is first published under this subsection).
No. 34 Page 23, schedule 1 [67], proposed section 126J, line 19. Insert ", subject to the completion of a further survey with respect to the land (as required to satisfy the criteria for certification)" after "Division".
No. 35 Page 23, schedule 1 [67]. Insert after line 19:
126K Reassessment of biodiversity certification
(1) The Minister is to reassess the grant of biodiversity certification in respect of an EPI following any review of the EPI under the Environmental Planning and Assessment Act 1979, or any rezoning of land to which the EPI applies, to determine whether biodiversity certification should be maintained or modified.
(2) If a local council undertakes a review of a biodiversity certified EPI that applies to land in its area, the council is to notify the Minister of the commencement of that review, and the outcome of that review, as soon as practicable.
No. 36 Page 23, schedule 1 [67], proposed section 126K. Insert after line 27:
(b) the EPI, and any other relevant measures, will fail or has failed to lead to the overall improvement or maintenance of biodiversity values on the area of land to which the EPI applies, or
No. 37 Page 23, schedule 1 [67], proposed section 126K. Insert after line 27:
(b) the EPI has ceased to meet the criteria for certification, or
No. 38 Page 23, schedule 1 [67], proposed section 126K. Insert after line 27:
(b) the EPI is not consistent with the achievement of the objects of this Act, or
No. 39 Page 23, schedule 1 [67], proposed section 126L, line 37. Insert "within 21 days" after "given".
No. 40 Page 24, schedule 1 [67], proposed section 126L. Insert after line 6:
(2) The Minister is to keep a register containing copies of each notice of the grant of biodiversity certification under this Division and of any extension, suspension or revocation of that certification.
(3) The register is to be open for public inspection, without charge, during ordinary business hours, and copies of or extracts from the register are to be made available to the public on request, on payment of the fee fixed by the Minister.
No. 41 Page 24, schedule 1 [67], proposed section 126M, line 37. Insert "but only if the majority of those conservation benefits are of a permanent nature" after "EPI)".
No. 42 Page 25, schedule 1 [67], proposed section 126M, lines 5-7. Omit all words on those lines. Insert instead:
(5) The annual report of the Department is to include an assessment of how any voluntary action taken pursuant to a condition imposed under this section has benefited or is likely to benefit the adversely affected threatened species, including details of how any land or money contributed pursuant to such a condition has benefited or is likely to benefit threatened species.
No. 43 Page 25, schedule 1 [67], proposed section 126N, line 24. Insert "(not exceeding 3 years)" after "period".
Biodiversity certification of an EPI may be extended. Amendment No. 33 provides an opportunity for the public to comment on a proposed extension. Amendment No. 34 makes it necessary to undertake a further biodiversity survey if certification is extended, which may be 10 years after the original certification. In relation to amendment No. 35, if an EPI is reviewed with the intention of changing its provisions the Minister must determine whether certification should be maintained or modified. In regard to amendments Nos 36 to 38, with the addition of extra tests for biodiversity certification of EPI we must close the loop by making them a matter to be considered for decertification. Amendment No. 39 provides 21 days for notification of the grant for certification, revocation or suspension.
Amendment No. 40 creates a register of certification for public access. Amendment No. 41 provides that the majority of benefits—biodiversity certification of an EPI anticipates a number of conservation benefits—should be of a permanent nature. The bill provides for the voluntary contribution of land or money as a condition of certification. Amendment No. 42 states that such things should benefit the parties affected adversely. The accreditation of consultants is a good move. Amendment No. 43 brings the accreditation into line with the Contaminated Land Management Act, which provides for no more than three years accreditation. This will improve the integrity of the consultant industry. I commend Greens amendments Nos 33 to 43 to the Committee.
The Hon. IAN MACDONALD (Minister for Primary Industries) [11.33 a.m.]: The Government supports Greens amendment No. 33. Allowing the public to comment before a decision is made to extend the period of biodiversity certification for an environmental planning instrument is not unreasonable. The Government does not support Greens amendment No. 34 because it would create a potentially unnecessary and certainly an extremely costly process. The Minister retains a right to take into account new information as it comes to hand. It is unnecessary to mandate that further surveys always be undertaken. The Government supports Greens amendment No. 35. In cases where the certified environmental planning instrument is to be reviewed or amended it is the Government's intention that the continued need for certification is considered part of the process. The Government does not support Greens amendments Nos 36 to 38. Provisions in the bill already deal with the issues covered by the amendments and, therefore, they are unnecessary.
The Government supports Greens amendment No. 39, which merely requires notification of certification of environmental planning instruments to be made in a timely fashion rather than be open-ended. The Government supports Greens amendment No. 40, which establishes a public register of the notices granting biodiversity certification to environmental planning instruments. The Government does not support Greens amendment No. 41, which sets an unreasonably high barrier for certification as such and undermines a key feature of the bill. The Government supports Greens amendment No. 42. It is not unreasonable for this information to be included in the department's annual reports. The Government supports Greens amendment No. 43. A three-year accreditation period for suitably qualified and experienced persons to undertake and prepare surveys and assessment on threatened species is not unreasonable.
The Hon. RICK COLLESS [11.35 a.m.]: The Opposition does not oppose Greens amendments Nos 33, 35 39, 40, 42 and 43. However, we oppose Greens amendments Nos 34, 36, 37, 38 and 41.
Amendment No. 33 agreed to.
Amendment No. 34 negatived.
Amendment No. 35 agreed to.
Amendments Nos 36 to 38 negatived.
Amendments Nos 39 to 40 agreed to.
Amendment No. 41 negatived.
Amendments Nos. 42 to 43 agreed to.
The Hon. RICK COLLESS [11.37 a.m.]: I seek leave to move Opposition amendments Nos 16 and 33 in globo. Division 6 in the main part of the bill and division 12 in the Fisheries Management Act, which is exactly the same—
The CHAIRMAN: Order! No, we will not be able to do that because amendment No. 33 is in conflict with another amendment that has been lodged by the Australian Democrats. We need to deal with them separately.
The Hon. RICK COLLESS [11.38 a.m.]: I move Opposition amendment No. 16:
No. 16 Page 25, schedule 1 [67]. Insert after line 36:
Division 6 Biodiversity certification of catchment action plans
126O Biodiversity certification
(1) The Minister may by order published in the Gazette confer biodiversity certification on a catchment action plan for the purposes of this Act.
(2) In this Division, catchment action plan means a catchment action plan under the Catchment Management Authorities Act 2003.
126P Effect of biodiversity certification
While biodiversity certification of a catchment action plan is in force, all land within the area of operations of the catchment management authority responsible for the plan has the benefit of biodiversity certification.
Note. If a catchment action plan is certified under this Division:
(a) the clearing of native vegetation as authorised by a property vegetation plan that is approved for land while the land has the benefit of biodiversity certification is not an offence under Part 8A of the NPW Act, and
(b) development consent to clearing of native vegetation does not require the preparation of a species impact statement or consultation between Ministers (see section 14 (4) of the Native Vegetation Act 2003).
126Q Period of certification
(1) Biodiversity certification remains in force for such period as the Minister determines and specifies in the certification. If no period is specified, biodiversity certification remains in force for 10 years.
(2) Prior to the expiration of biodiversity certification of a catchment action plan, the Minister may by order published in the Gazette extend by a period of up to 10 years the period for which that certification remains in force, but only if the Minister has reviewed the catchment action plan to take account of any new listing of a species, population or ecological community or the discovery of a species, population or ecological community not previously known in an area.
(3) This section does not prevent further biodiversity certification of a catchment action plan under this Division.
126R Suspension and revocation of certification
(1) The Minister may by order published in the Gazette suspend or revoke biodiversity certification of a catchment action plan if:
(a) the plan or its current or likely future implementation will result in a failure to conserve threatened species, populations and ecological communities, or
(b) the catchment management authority responsible for the plan has failed to properly exercise its functions under the plan, or
(c) the catchment management authority responsible for the plan has otherwise failed to exercise its functions in a manner that promotes the conservation of threatened species, populations and ecological communities.
(2) During the suspension or following the revocation of biodiversity certification of a catchment action plan, land within the area of operations of the catchment management authority responsible for the plan does not have the benefit of the biodiversity certification of the catchment action plan.
(3) The Minister is only entitled to form an opinion for the purposes of this section:
(a) based on the outcome of any audit undertaken by the NRC, or
(b) based on the results of an investigation conducted by the Director-General, or
(c) in such other circumstances as may be prescribed by the regulations.
126S Notification of certification, suspension or revocation
Notice of the grant of biodiversity certification under this Division or of any suspension or revocation of that certification under this Division is to be given:
(a) to the relevant catchment management authority, and
(b) to the Director-General of the Department of Infrastructure, Planning and Natural Resources, and
(c) on the website of the Department of Environment and Conservation.
The amendment installs a division 6 into the bill, providing for biodiversity certification of catchment action plans. It is an important inclusion because it further justifies the strengthening of the property vegetation planning component of the Native Vegetation Act. If the whole concept of biodiversity certification has any meaning at all, it is absolutely vital that catchment action plans are certified. To my mind the proposed division 6 is far more meaningful than division 4, which seems to me to be a meaningless statement. Imagine what a farmer would say to the good little bureaucrat when he knocks on the farmer's door and says, "Hello, I'm from the Government. I'm here to biodiversity certify you." At least division 6 will enhance the need for the farmer to have his property vegetation plan completed under the Native Vegetation Act, which will allow him to get on with the job he has to do: produce the food, fibre and building materials upon which this State is built. I commend the inclusion of division 6 to the Committee.
The Hon. IAN MACDONALD (Minister for Primary Industries) [11.39 a.m.]: The Government opposes this amendment. It is unnecessary because the Government already intends to move amendments to allow Ministers to certify the native vegetation reform package prior to finalisation of catchment management plans. It is also unnecessary because of the standards and targets that are being developed by the Natural Resources Commission. In that way, the commencement of the threatened species and native vegetation reforms will not be delayed in the event that catchment action plans, or other elements of the native vegetation reform package, are delayed or prepared progressively over time.
The Government's amendments have the support of the New South Wales Farmers Association. However, the Government is prepared to support an amendment to new section 126F of the bill to ensure that relevant catchment management authorities are notified of any changes to certification affecting their areas. The Department of Environment and Conservation and the Department of Primary Industries will be establishing a notification process in any case. I have no objection to this being codified in the Threatened Species Conservation Act.
Mr IAN COHEN [11.40 a.m.]: The Greens do not support the Opposition's amendment No. 16. This amendment provides for biodiversity through the catchment action plans and treats the plans the same as environmental planning instruments. However, catchment management plans are not regulatory instruments. Even if they have received certification, they do not impose legal obligations on landowners. They are basically a framework for investment in catchment improvement. The Greens oppose the Opposition's amendment.
Amendment negatived.
Mr IAN COHEN [11.41 a.m.]: I move Greens amendment No. 44:
No. 44 Page 27, schedule 1 [71], proposed section 141B. Insert after line 11:
(d) community involvement in biodiversity conservation.
This amendment adds the next area of expertise: community involvement in biodiversity conservation. I commend Greens amendment No. 44 to the Committee.
The Hon. IAN MACDONALD (Minister for Primary Industries) [11.41 a.m.]: The Government opposes the amendment. The skills outlined in the amendment will be more than adequately represented on the proposed Biological Diversity Advisory Council.
The Hon. RICK COLLESS [11.41 a.m.]: The Opposition is opposed to this amendment.
Amendment negatived.
TheCHAIRMAN: Order! Greens amendment No. 45, Opposition amendment No. 17, Greens supplementary amendment No. 3 and Australian Democrats amendment No. 1 are in conflict. They will be moved concurrently. If any amendments are successful, the others will lapse. I ask Mr Ian Cohen to clarify whether he wishes to proceed with both Greens amendments.
Mr IAN COHEN [11.43 a.m.]: I will not move Greens amendment No. 3, which I understand is not supported. I move Greens amendment No. 45:
No. 45 Page 28, schedule 1. Insert after line 30:
[74] Section 157
Omit the section. Insert instead:
157 Review of Act
(1) The Minister is to undertake a review of this Act. The review is to include an assessment of the following:
(a) whether the terms of this Act are appropriate for achievement of the objects of this Act,
(b) the performance of measures associated with the biodiversity certification of the native vegetation reform package and environmental planning instruments,
(c) the adequacy of resources allocated to the implementation of this Act.
(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to the Threatened Species Legislation Amendment Act 2004.
(3) The Minister is to make arrangements for public consultation in respect of the review.
(4) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.
The legislation should be reviewed after five years. The review should include whether the Act has satisfied its objects, the performance of EPIs and the native vegetation reform package, and the adequacy of resources allocated to its implementation. The amendment also provides for public consultation. I commend Greens amendment No. 45 to the Committee.
The Hon. RICK COLLESS [11.44 a.m.]: I move Opposition amendment No. 17:
No. 17 Page 28, schedule 1. Insert after line 30:
[74] Section 157
Omit the section. Insert instead:
157 Review of Act
(1) The Minister is to review this Act to determine whether the policy objectives of the Act are being fulfilled and whether the terms of the Act, and any environmental planning instruments granted biodiversity certification under Part 7, remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to the Threatened Species Legislation Amendment Act 2004.
(3) The Minister is to make arrangements for public consultation with respect to the review.
(4) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.
Amendment No. 17 allows for a review of the Act five years from the date of assent, with a report to be tabled in both Houses of Parliament within 12 months of that five-year period. This is a very important amendment because the concept of threatened species conservation should be accountable. As I pointed out during the second reading debate, the Act in its current form is simply not working. That is obvious from the number of species that are continually added to the list and the non-removal of species from the list because of recovery. I hope that this amendment will allow the position to be monitored. The process should be accountable. We need to know whether the Act is working and whether it is saving threatened species. This amendment will substantially contribute toward achieving that end. I commend amendment No. 17 to the Committee.
Mr IAN COHEN [11.45 a.m.]: I am wondering whether my amendment No. 45 is exactly the same as the Opposition's amendment. I am worried that if my amendment No. 45 is rejected, that may have an effect on the Opposition moving amendment No. 17.
TheCHAIRMAN: Order! We are going through them now.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [11.46 a.m.]: They are not identical.
Mr IAN COHEN [11.46 a.m.]: At this point I understand that my amendment is not supported, so I will withdraw it. I will be supporting the Opposition's amendment No. 17.
Greens amendment No. 45, by leave, withdrawn.
TheCHAIRMAN: Order! The Australian Democrats amendment refers to the same section of the Act, but addresses a different matter.
The Hon. IAN MACDONALD (Minister for Primary Industries) [11.47 a.m.]: The Government is prepared to support the Opposition's amendment. A review of the Threatened Species Conservation Act in five years time will ensure that the legislation remains up to date and relevant.
Mr IAN COHEN [11.47 a.m.]: I support the Opposition's amendment, rather than not oppose it. It is a good amendment. The Greens support the Opposition's amendment in relation to the five yearly reviews of the Act. We support the amendment which refers to a review of the allocation of resources for the implementation of the Act. I congratulate the Opposition on its amendment.
Reverend the Hon. FRED NILE [11.48 a.m.]: The Christian Democratic Party is pleased to support amendment No. 17. It is important that there be a review at the end of the five-year period.
Opposition amendment No. 17 agreed to.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [11.48 a.m.]: I seek leave to move Australian Democrats amendment Nos 1, 2 and 3 in globo.
TheCHAIRMAN: Order! It is not possible for the Hon. Dr Arthur Chesterfield-Evans to move his amendments in globo. Some of the Australian Democrat amendments are in conflict with amendments lodged by other parties.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [11.49 a.m.]: Are they in conflict merely in sequence or in concept?
TheCHAIRMAN: They are in conflict in concept. I ask the Hon. Dr Arthur Chesterfield-Evans to move only Australian Democrats amendment No. 1 at this stage.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [11.49 a.m.]: I move Australian Democrats amendment No. 1:
No. 1 Page 28, schedule 1. Insert after line 30:
[74] Section 147A
Insert after section 147:
147A Appeals against biodiversity certification of EPI
(1) An interested person may, within 28 days after notice of a biodiversity certification decision is first published on the website of the Department of Environment and Conservation, appeal to the Land and Environment Court against that decision.
(2) The Land and Environment Court may hear and determine an appeal made under this section.
(3) In determining such an appeal, the Court may, by order:
(a) confirm the decision, or
(b) revoke the decision, or
(c) revoke the decision and substitute any decision that could have been made by the Minister under Division 5 of Part 7.
(4) An order made by the Court under this section:
(a) takes effect on and from a date specified by the Court, and
(b) operates as if it were a decision made by the Minister under this Act.
(5) If an appeal is made under this section, the Minister is to be given notice of that appeal, in accordance with rules of court, and is entitled to be heard at the hearing of the appeal as a party to the appeal.
(6) In this section:
biodiversity certification decision means a decision of the Minister to grant biodiversity certification of an EPI under Division 5 of Part 7.
interested person means a person who made a submission in respect of a biodiversity certification decision under section 126G (3).
Third party appeal rights are a fundamental principle that should be part of all good environmental legislation. Third party appeal rights will allow the public to challenge a failure to follow due process, and also give the public an opportunity to undertake a review of the merits of a decision. While appeals are possible to change the procedures for decision there is limited opportunity to challenge the merits of a decision under the Threatened Species Conservation Act. A third party merits appeal is allowed only when a threatened species licence is being issued, so it is somewhat limited. The Australian Democrats amendment allows third parties to review a decision by the Minister for the Environment to issue biodiversity certification or to extend that certification.
Appeals must be lodged within 28 days of the certification and the Land and Environment Court rules on the appeal. Only people who have made a submission to the public exhibition of the environmental planning instrument can be certified to initiate an appeal—not everyone can appeal. Third party appeal rights are limited to who can appeal and the time in which they can appeal. This is a moderate amendment and I commend it to the Committee.
Mr IAN COHEN [11.50 a.m.]: I clarify for the Committee that the Greens support the amendment; it is not one that the Greens reject.
The Hon. Duncan Gay: You have given Ace a promise.
Mr IAN COHEN: To be honest, in the process of dealing with a vast number of amendments there was a sequential problem that Dr Arthur Chesterfield-Evans very generously supported. I feel very strongly about this and I commend Dr Arthur Chesterfield-Evans for moving the amendment, which the Greens certainly support.
The Hon. IAN MACDONALD (Minister for Primary Industries) [11.52 a.m.]: It is good to hear that Mr Ian Cohen has kindly dobbed in the Hon. Dr Arthur Chesterfield-Evans on the comments that we have thrown at him. The Government opposes all three Australian Democrat amendments.
TheCHAIRMAN: The Committee is dealing only with Australian Democrats amendment No. 1.
The Hon. IAN MACDONALD: Yes. As with the Greens amendments, the Australian Democrats amendments were provided to the Government just seconds before debate on this bill resumed. To allow proper consideration of these kinds of amendments they should be circulated far earlier in the process. The amendments are opposed because they create an immediate inconsistency with the Environmental Planning and Assessment Act. Merit appeals for an environmental planning instrument [EPI] are not presently allowed under that Act. Australian Democrats amendment No. 1 would, in effect, allow merit appeals for an EPI at least insofar as biodiversity certification was concerned.
It is worth recollecting that when the Government was amending the Land and Environment Court Act 2002 numerous crossbench members, including the Hon. Dr Arthur Chesterfield-Evans as I recall, objected to the ability of the court to hear merit appeals. Yet, this amendment would create a new merit appeal for the court to hear. Obviously the Hon. Dr Arthur Chesterfield-Evans has forgotten his speech on that occasion.
The Hon. RICK COLLESS [11.53 a.m.]: The Nationals are completely opposed to third party appeals, philosophically and with good reason. Following the enactment of the original native vegetation legislation, State Environmental Planning Policy 46, a farmer could knock down a tree in his paddock. Someone driving along a nearby road could report that farmer without any comeback, whereas the farmer, in most cases, had obtained the appropriate approvals. Reporting of that incident has done nothing more than take up the time of bureaucrats in checking out the situation, or taking the matter to court in some cases. Quite frankly, I am opposed to anyone having the right to come onto my farm and question what I am doing when I have the correct approvals in place. The Coalition will not support any amendments moved by the Hon. Dr Arthur Chesterfield-Evans.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [11.54 a.m.]: To pick up the point raised by the Hon. Rick Colless, the idea that the correct approvals may be in place assumes that the system works perfectly. However, justice has to be done and has to be seen to be done. It cannot be assumed that the existing processes will work perfectly. I do not believe that the Democrats emphasis on open process is inconsistent. We have taken a consistent line about open process; I do not know what inconsistencies the Minister for Primary Industries is talking about. This is an important point and given the Government's record of not following the right process—whether it is closing Beacon Hill High School or approving other developments—it does not necessarily always do the right thing. Third party appeal rights are important in keeping the Government honest. I commend the amendment to the Committee.
Question—That the amendment be agreed to—put.
The Committee divided.
Ayes, 6
 | Mr Breen
Ms Hale
Ms Rhiannon
Dr Wong
Tellers,
Dr Chesterfield-Evans
Mr Cohen | |
Noes, 32
Ms Burnswoods
Mr Catanzariti
Mr Clarke
Mr Colless
Mr Costa
Ms Cusack
Mr Della Bosca
Mr Egan
Mrs Forsythe
Mr Gallacher
Miss Gardiner | Mr Gay
Ms Griffin
Mr Hatzistergos
Mr Jenkins
Mr Kelly
Mr Lynn
Mr Macdonald
Reverend Nile
Mr Obeid
Mr Oldfield
Ms Parker | Mrs Pavey
Mr Pearce
Ms Robertson
Mr Roozendaal
Mr Ryan
Ms Tebbutt
Mr Tsang
Mr West
Tellers,
Mr Harwin
Mr Primrose |
Question resolved in the negative.
Amendment negatived.
Pursuant to sessional orders consideration interrupted, progress reported from Committee and leave granted to sit again.
Last modified 05/12/2007 16:32:20 : Update this page