Pollution Control Amendment Bill
POLLUTION CONTROL AMENDMENT BILL
Debate resumed from 13 November.
Mr HAZZARD (Wakehurst) [11.25]: The genesis of this legislation was the decision in Environment Protection Authority v Cleary Brothers (Bombo) Pty Ltd in August 1996 with regard to cross-media licence conditions. I indicate at the outset that the coalition will not oppose the legislation, because we are totally committed to ensuring the existence of workable laws in regard to pollution and other environmental controls, and is committed to ensuring that those measures will eventually improve the quality of our environment. The Environment Protection Authority was established in late 1991 or early 1992. It took over from the State Pollution Control Commission and was, if you like, stage one of the initiatives introduced by the coalition to give New South Wales a cleaner environment.
Shortly after the authority was established it commenced to issue licences under the Pollution Control Act. That Act relates primarily to three separate Acts: the Noise Control Act, the Clean Waters Act and the Clean Air Act. For some time the practice has been that if an individual or company applies for a licence under the Pollution Control Act, perhaps primarily for a purpose covered by one of the other three Acts, the EPA would impose principal conditions related to the primary activity of the individual or company seeking the licence. These licences are complicated, sometimes 15 or 20 pages long, and may be subject to quite onerous conditions. While the coalition is supportive of major environmental improvements, it also wants to ensure that business does not suffer overly from undue licensing requirements.
To that extent the coalition supported the establishment of the Environment Protection Authority and continues to support the concept of the EPA issuing licences under the Pollution Control Act that have what are referred to as cross-media conditions. If, for example, a council conducting a sewage plant lodges an application that requires primary approvals under the Clean Waters Act, it may well be that it is appropriate - in fact, it has been the practice of the EPA - to issue a licence under the principal Act, that is, the Clean Waters Act, but to attach to it other conditions concerning related matters. With a sewage plant an obvious consideration would be clean air, because in all likelihood a degree of odour would emanate from it.
Almost immediately upon the establishment of the Environment Protection Authority it developed the practice, quite properly in the coalition's view, of issuing one licence with a number of cross-references to the other relevant Acts, which are generally referred to as cross-media licence conditions. Apparently Cleary Brothers, which is a company that operates in the Albion Park region, decided to challenge the Environment Protection Authority in respect of a number of aspects of its licence. I understand that approximately 15 conditions attached to the issue of the licence and that at the court hearing the defence counsel sought an interpretation by the judge hearing the case. The determination related to whether a particular condition that was not provided for by the principal legislation - a cross-media licence condition - was, in effect, ultra vires.
Defence counsel asked the judge to determine whether it was within the power of the Environment Protection Authority to impose such a condition and whether it was valid for the EPA to take proceedings against the company on the basis of an alleged breach of a condition that defence counsel argued should not have been imposed in the first place. His honour determined that the EPA was, and apparently had been for some time, acting ultra vires in imposing cross-media licence conditions.
Mr Gaudry: Does that mean it was outside the law?
Mr HAZZARD: The honourable member for Newcastle wants a translation of the expression "ultra vires". It does not mean outside the law, but beyond the authority's legal powers. I will be running legal tuition classes this afternoon for any honourable member on the Government benches who has difficulty understanding basic legal requirements. I will be delighted if the Minister for the Environment comes along to learn a few legal points as well. Having said that, that decision did, and obviously still does, present problems for the EPA and its everyday licensing procedures. I understand that approximately 20 per cent of all
Environment Protection Authority licences have cross-media conditions. I am not sure about the number of licences that have been issued; the Minister has not taken me into her confidence in the past year or so.
Ms Allan: Not likely!
Mr HAZZARD: It may not be likely. I am sure the Minister will tell us, although she has not told us yet, just how many licences are subject to the problem, rather than just the percentage involved. Be that as it may, this legislation is sensible and logical - indeed, it is quite out of the range of what one would expect from this Government - and the Opposition does not oppose it. The Government would do well to realise that if it consults widely with all relevant parties on pollution control legislation, the coalition will on most occasions not oppose it. The Government's actions in the past few months have not been helpful. There has been very little consultation with the Opposition, even on this bill. I am not sure why that is; it may be because the Minister and her staff felt that the bill was fairly straightforward. It is my understanding that the Minister did not consult various environmental groups, either.
I have a letter from an environmental legal firm in Sydney voicing concern that the amendment does not appear to have been the subject of consultation before introduction and that there is still no sign of the promised comprehensive pollution control reforms. It would assist if the Minister reminded herself and her staff that it helps to consult the Opposition, because when it comes to trying to minimise pollution and improve the environment we are probably batting on the same team. The press release issued by the Minister for the Environment last week headed "Opposition Backs Illegal Polluters and Dumpers" was probably the most puerile ever issued from a Minister's office. I am not sure whether the Minister actually read the press release, but if she had she could not possibly have agreed with it. It said that the Opposition was supportive of polluters and passed comment on genuine concerns raised by the Opposition in relation to environmental pollution legislation before the House. The Opposition had simply said that consultation and discussion were needed.
If consultation and discussion take place, nine times out of 10 there will be a great deal of consensus on environmental pollution issues. Although there was no Government consultation with industry or with any of the environmental or conservation groups, the Opposition has undertaken that consultation, and it appears that there is broad acceptance of the measures in the bill. As I have said, the legislation makes commonsense. It is in the interests of business to keep the number of licence procedures to a minimum and it is in the interests of the environment to keep appropriate controls in place through the Environment Protection Authority. The Opposition will not oppose the bill and is happy that these various provisions are to come into law to rectify the problems currently being suffered by the EPA.
Mr GAUDRY (Newcastle) [11.43]: It is a great pity that the honourable member for Wakehurst, after giving a fine historical account of the necessity for the bill, descended into personal attack - particularly after the Government has gone to great lengths to accommodate him in this debate. I agree that the bill is timely and necessary if the EPA is to be able to carry out its functions on behalf of the Government and the people of New South Wales to ensure that pollution is reduced to a minimum and that ecologically sustainable development can be achieved. It is important that industry is able to get on with producing the goods so much required for the domestic and export markets. As has been pointed out by both the Minister for the Environment and the honourable member for Wakehurst, the effect of the decision in Environment Protection Authority v Cleary Brothers (Bombo) Pty Ltd is that the EPA is, in the words of the honourable member for Wakehurst, acting ultra vires, which I understand means outside the leave of the Act. There is no doubt that something had to be done.
The Government is dedicated to making sure that all forms of pollution are properly regulated. It is just not good enough that a company, while perhaps complying with the requirements of a licence issued under the Clean Air Act, may not be subject to penalty for water pollution or noise pollution. The EPA must be able to control all forms of pollution associated with a licensed activity. Without the power to do that, the EPA would only be able to carry out its duties in a piecemeal fashion - it would be neutered and would have to operate with one arm tied behind its back. The significance of the issue is best illustrated by a practical example. As was mentioned by the honourable member for Oxley yesterday, coalmines are an important part of the national economy, the State economy and, certainly, the Hunter Valley economy. Some 50 million tonnes of coal are exported from the Hunter each year. Coalmines also generate pollution. If we are to be serious about protecting the environment and maintaining ecologically sustainable development we must control the pollution resulting from coalmining activity.
Under the current legislation coalmines generally require only a clean air licence. However, air pollution is not the only problem associated with coalmining. Water pollution and noise pollution, particularly if coalmines are situated close to residential areas, can become significant factors. Without this bill the EPA will be able to control only the air pollution created by a coalmine. That is totally unacceptable, particularly if mines are situated close to urban development. The reality is that if the Government is not able to pass this bill urgently, the enforceability of cross-media conditions will be in serious jeopardy. As explained, those
conditions relate to the Pollution Control Act, the Clean Air Act, the Clean Waters Act and the Noise Control Act - the instruments under which the EPA issues licences.
As my simple example of a coalmine clearly demonstrates, it would be a dangerous and a foolish state of affairs to have both the Opposition and the Government clearly dedicated to reducing pollution but the EPA neutered in its ability to carry out the wishes of government. Anyone who opposed the bill could be motivated only by a desire to protect polluters. The Opposition has clearly indicated that it is not in that position. The Opposition supports the Government in this measure and recognises that a finding in law such as that referred to has been made, it is the Government's responsibility to clarify the legislation and maintain the drive to make New South Wales a centre for not only ecologically sustainable development but also for excellence in pollution control. We cannot afford to allow the present position to remain, and therefore the bill is responsible and timely. It is another example of the Government recognising that one of our laws can be improved to bring certainty to a process with which we all agree. I commend the bill to the House.
Ms FICARRA (Georges River) [11.49]: As the shadow minister for the environment said, the coalition does not oppose the bill. The Opposition has always been committed to responsible actions and responsible legislation that will effectively bring about constant improvement in the quality of the environment. Indeed, it was the coalition that in 1991 introduced the legislation to establish the Environment Protection Authority. However, we have a responsibility to introduce tough but justifiable environmental legislation. By working in partnership with local communities, special interest groups and environmental groups we can ensure that the legislation introduced is workable and relevant.
The coalition is proud to be consulting with those parties that are most affected by the legislation, whether it be on the former waste minimisation legislation, this pollution legislation or the national parks and wildlife amendment legislation concerning Aboriginal land that was introduced this morning. It is disappointing - I am not going on the attack - to read some of the press releases from the Minister accusing the Opposition of supporting the State's illegal dumpers. Those accusations are offensive to Opposition members, because we are working hard for environmental protection. I hope we will see fewer of such press releases and that a friendly, cooperative relationship can develop between the Government and the Opposition on major items such as stopping or decreasing illegal pollution.
The Opposition supports the legislation, but it is disappointed at the lack of consultation. The former Chamber of Manufactures was not consulted. It supports the legislation but would appreciate an occasional phone call from relevant advisers in the Minister's office. The Opposition always supports any actions that achieve ecologically sustainable development and management of environmental resources. The purpose of the bill is to legalise cross-media licensing practices of the Environment Protection Authority. Regulation of pollution from activities licensed by the EPA is vital, and the bill clarifies the powers of the EPA by amending the Pollution Control Act to authorise the attachment of cross-media conditions to licences. The object of the bill is to amend the Pollution Control Act of 1970 to enable the EPA when making decisions concerning a licence under a pollution control Act, including decisions concerning the imposition of conditions, to regulate the whole of the pollution caused by the activity concerned instead of being limited to regulate only the kind of pollution dealt with under a particular pollution control Act.
The Acts concerned are the Pollution Control Act of 1970, the Clean Air Act of 1961, the Clean Waters Act of 1970 and the Noise Control Act of 1975. The amendments will overcome the decision of the Land and Environment Court in Environment Protection Authority v Cleary Brothers (Bombo) Pty Ltd given on 28 August 1996. If a licence is required under the Clean Air Act, the Clean Waters Act or the Noise Control Act the EPA should be able to impose conditions on that licence regulating all pollution associated with the relevant activity. It makes sense to achieve efficient, effective, positive environmental outcomes in this manner. Noise, water and air pollution are considered and regulated where relevant in each case considered by the EPA for licensing, hence the term "cross-media conditions". This approach is all encompassing and sensible and is supported by the coalition so that proper environmental protection may be achieved. With the passage of the bill, cases such as that involving Cleary Brothers in the Land and Environment Court will be avoided.
The second purpose of the bill is to validate conditions attached to existing EPA licences, whether they fall under the jurisdiction of the Clean Air Act, the Clean Waters Act or the Noise Control Act. If left unchecked, following the recent Cleary case 20 per cent of EPA licences involving cross-media conditions would be invalid. Clearly, this is unworkable and unreasonable. So the coalition is very supportive of this remedial legislation to avoid any possible future environmental damage. But let us hope that we can work together in future and avoid such press releases as that put out recently which in the concluding paragraph stated, "The Opposition obviously had no desire to make enforceable environmental laws in this State, sending us back to the bad old days when environmental regulators were in bed with the industry." Let us try not to be emotional and full of political hype when dealing with such important legislation. Let us work together more cooperatively in future for the sake of our vital New South Wales environment and recognise the significance that all of our constituents place on adequate environmental protection. The coalition does not oppose the bill.
Mr ELLIS (South Coast) [11.56]: I place on record that I completely oppose polluters and dumpers. Representing the seat of South Coast, which is in the Shoalhaven area, I believe it is very important that proper management be put in place and that air, water and noise pollution should be controlled. Cross-media management controls should be in place. This bill is a good management tool and I do not oppose it. I will do everything possible to bring polluters and dumpers to justice and make them pay for the damage that they do. Rubbish is dumped and water is polluted in many areas of the Shoalhaven by people committing illegal acts.
Mr D. L. PAGE (Ballina) [11.57]: I am familiar with the Cleary Brothers case, the outcome of which was largely the catalyst of this legislation. The case was particularly tragic for the Dunster family. Peter Dunster, a personal friend of mine, was a key witness for the EPA in its case against Cleary Brothers, which the EPA believed was in breach of its licence conditions regarding acceptable noise levels. Cleary Brothers owns a quarry adjacent to the Dunster family's dairy farm near Shellharbour. The blasting that was occurring at the Cleary Brothers quarry was of great concern to the Dunster family, which has been in the district for several generations.
Without going into the detail of the background of the case, Peter Dunster was a man of integrity and honesty. He was only in his early forties, married with three small children, when he was called as a witness for the EPA. Unfortunately, three days after Mr Dunster appeared in court he took his own life in tragic circumstances - I believe because of the trauma associated with his court appearance. This whole experience has devastated the Dunster family and left a young woman, Fiona Dunster, without a husband and three small children without a father. Whilst nothing can bring Peter Dunster back, I want honourable members to know that in order to get where we are today with the amendments to this legislation there has been great personal tragedy for the Dunster family. I support the legislation. I only regret the personal tragedy to the Dunster family which occurred during the Cleary Brothers case. I extend my strong personal sympathy to the Dunster family during their period of bereavement.
Ms ALLAN (Blacktown - Minister for the Environment) [11.59], in reply: I welcome the Opposition's support for these important changes to the Pollution Control Act. The passing of these amendments will send an emphatic message to the public and to industry that both the Government and the Opposition are committed to ensuring that all forms of pollution from licensed activity are properly regulated. The imposition of conditions controlling all forms of pollution has been a long-established practice of the Environment Protection Authority and its predecessor, the State Pollution Control Commission. Until the Cleary Brothers case the EPA's ability to control all forms of pollution had never been questioned. The public and industry were informed on several occasions about the Government's intention to close the loopholes in the Pollution Control Act. When the case was heard in the Land and Environment Court the EPA pointed out the possible implications for regulation of the State's industry as a result of the court decision. In fact the EPA issued a stern warning to industry that failure to adhere to licence conditions would be a high-risk strategy.
The Environment Protection Authority also made various public statements to the effect that it would seek to overcome the decision to guarantee rigorous environmental regulation. It was also made clear that the review of the State's pollution control legislation would be another opportunity to clarify the responsibilities of the industry. That, of course, was on 30 August. On 11 September I announced that the Government would seek to introduce legislation to overcome the court decision to ensure that companies continue to abide by their licence conditions and plant upgrades to reduce pollution. Since the introduction of the legislation the Government has offered to consult and brief not only the Opposition but industry, including the Australian Chamber of Manufactures, which represents a substantial number of companies with pollution control licences in this State.
By and large industry has been mute on the legislation because industry knows that the bill is all about maintaining the status quo and giving certainty to existing licences. The last thing industry wants is to run vexatious court actions over licence conditions which it has already agreed to and to which it has made a financial commitment. It is important that these amendments be brought forward now. The EPA will appeal against the Cleary Brothers decision; however, this will take some time. In the meantime it is vital that the EPA is able to control all types of pollution associated with a licensed activity in an integrated and holistic way. Without this power the ability to effectively regulate the significant sources of environmental harm will be seriously compromised. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.