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Hansard & Papers
Legislative Assembly
16 November 2004
Threatened Species Legislation Amendment Bill
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Subjects -
Wildlife
;
Trees and Plants
;
Environment
;
National Parks
;
Coastline
;
Planning and Development
;
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;
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Speakers -
Debus Mr Bob
;
Richardson Mr Michael
;
Stoner Mr Andrew
;
Fraser Mr Andrew
Business -
Bill, Message, In Committee, Motion
THREATENED SPECIES LEGISLATION AMENDMENT BILL
Page: 12923
In Committee
Consideration of the Legislative Council's amendments.
Schedule of amendments referred to in message of 10 November
No. 1 Page 8, schedule 1. Insert after line 18:
[14] Regulations prescribing criteria under this Part
A regulation that prescribes criteria for the purposes of section 10, 11, 12 or 13 is not to be made unless the Minister certifies in writing that:
(a) the criteria are based on scientific principles only, and
(b) any criteria for listing under the
Environment Protection and Biodiversity Conservation Act 1999
of the Commonwealth were given due consideration before the regulation was made.
No. 2 Page 9, schedule 1 [26], line 17. Insert "every 12 months" after "nominations".
No. 3 Page 12, schedule 1. Insert after line 23:
[37] Section 24 (3) (a)
Omit "National Parks and Wildlife Service".
Insert instead "Department".
No. 4 Page 12, schedule 1 [37], line 28. Omit "3 months". Insert instead "6 months".
No. 5 Page 14, schedule 1 [50], lines 15-17. Omit "and critically endangered species, populations and ecological communities". Insert instead "species, populations and ecological communities and critically endangered species and ecological communities".
No. 6 Page 14, schedule 1 [51], lines 22-23. Omit "or critically endangered species, populations and ecological communities". Insert instead "species, populations and ecological communities, or critically endangered species and ecological communities".
No. 7 Page 14, schedule 1 [52], line 26. Omit all words on that line. Insert instead:
Omit "of endangered populations and ecological communities".
No. 8 Page 15, schedule 1 [53], lines 1-2. Omit all words on those lines. Insert instead:
[53] Sections 37 (1), 40 (1), 41 (1), 43 (a) and 47 (3)
Insert "or critically endangered species or ecological community" after "endangered species, population or ecological community" wherever occurring.
[54] Section 38 Director-General responsible for identifying critical habitat
Insert "or critically endangered species or ecological community" after "ecological community".
No. 9 Page 15, schedule 1 [54], lines 5-6. Omit all words on those lines. Insert instead:
Insert ", for critically endangered species and ecological communities," before "and for vulnerable species" in the Introductory note to Part 4.
No. 10 Page 15, schedule 1 [56], line 11. Omit all words on that line. Insert instead:
Insert "and each critically endangered species and ecological community" after "and ecological community" in section 56 (1).
No. 11 Page 16, schedule 1 [64], proposed section 90A, line 26. Omit all words on that line. Insert instead:
and threat abatement strategies and their effectiveness, and
(d) contains a status report on each threatened species, where information is available, and
(e) sets out clear timetables for recovery and threat abatement planning and achievement.
No. 12 Page 16, schedule 1 [64], proposed section 90B, lines 29-30. Omit "As soon as practicable after the commencement of this section, the". Insert instead "The".
No. 13 Page 16, schedule 1 [64], proposed section 90B. Insert after line 31:
(2) The Priorities Action Statement must be completed as soon as practicable and no later than 12 months after the date of assent to the
Threatened Species Legislation Amendment Act 2004
.
No. 14 Page 17, schedule 1 [64], proposed section 90C, line 30. Insert "(being a date that is not less than 30 days after the date of publication of the notice under subsection (1) (a))" after "made".
No. 15 Page 18, schedule 1 [64], proposed section 90D, lines 1-2. Omit all words on those lines. Insert instead:
(3) The Director-General must adopt the Priorities Action Statement or amendment (with or without alterations) within 4 months after the end of the period allowed for the making of submissions about the draft statement or amendment.
No. 16 Page 18, schedule 1 [65], proposed section 113A. Insert after line 25:
(3) A regulation that provides that development or an activity of a specified type does not constitute development that is likely to significantly affect threatened species, populations or ecological communities, or their habitats, is not to be made unless the Minister has certified in writing that the development or activity is of minimal environmental impact on threatened species, populations and ecological communities, and their habitats.
No. 17 Page 18, schedule 1 [66], lines 28-32. Omit all words on those lines. Insert instead:
(a1) clearing of native vegetation as authorised by a property vegetation plan approved under the
Native Vegetation Act 2003
, being clearing that had the benefit of biodiversity certification of the native vegetation reform package under Division 4 of Part 7 when the plan was approved, or
No. 18 Page 19, schedule 1 [67] (proposed section 126C). Insert after line 24:
(2) The Minister may confer biodiversity certification even if the native vegetation reform package does not comprise all the elements of the package.
(3) The Minister may, by order published in the Gazette, suspend biodiversity certification of the native vegetation reform package if the composition of the package changes after its certification (for instance by any amendment of the
Native Vegetation Act 2003
or regulations under that Act, or by the approval or amendment of a State-wide standard or target or of a catchment action plan). The Minister may by order published in the Gazette lift any suspension under this subsection.
(4) The Minister may, in an order conferring biodiversity certification or in another order published in the Gazette, exclude from the certification of the native vegetation reform package any specified class of activity.
(5) In deciding on any action under this section, the Minister is to have regard to the likely impact of the native vegetation reform package (or any relevant aspect of its operation) on the achievement of the objects of this Act.
No. 19 Pages 19 and 20, schedule 1 [67], line 25 on page 19 to line 5 on page 20. Omit all words on those lines. Insert instead:
126D Effect of biodiversity certification
While biodiversity certification of the native vegetation reform package is in force, any activity on land within the area of operations of each catchment management authority has the benefit of that biodiversity certification (except any activity excluded from certification under section 126C (4)).
Note. Biodiversity certification has the following effects:
(a) the clearing of native vegetation as authorised by a property vegetation plan that is approved while the clearing has the benefit of biodiversity certification is a defence to a prosecution for certain offences under Part 8A of the NPW Act, and
(b) development consent to clearing of native vegetation that has the benefit of biodiversity certification does not require the preparation of a species impact statement or consultation between Ministers. (See section 14 (4) of the
Native Vegetation Act 2003
.)
No. 20 Page 20, schedule 1 [67], line 6. Omit all words on that line. Insert instead:
126E Suspension of certification in connection with implementation of package
No. 21 Page 20, schedule 1 [67] (proposed section 126E), lines 7-12. Omit all words on those lines.
No. 22 Page 20, schedule 1 [67], line 14. Omit "or revoke".
No. 23 Page 20, schedule 1 [67], line 23. Omit "or following the revocation".
No. 24 Page 21, schedule 1 [67] (proposed section 126F), line 4. Omit "or revocation".
No. 25 Page 21, schedule 1 [67], proposed section 126F, line 5. Insert "within 14 days" after "given".
No. 26 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.
No. 27 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.
No. 28 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.
No. 29 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. 30 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. 31 Page 23, schedule 1 [67], proposed section 126L, line 37. Insert "within 21 days" after "given".
No. 32 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. 33 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. 34 Page 25, schedule 1 [67], proposed section 126N, line 24. Insert "(not exceeding 3 years)" after "period".
No. 35 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.
No. 36 Page 36, schedule 2 [11]. Insert after line 12:
220FD Regulations prescribing criteria under this Part
A regulation that prescribes criteria for the purposes of section 220F, 220FA, 220FB or 220FC is not to be made unless the Minister certifies in writing that:
(a) the criteria are based on scientific principles only, and
(b) any criteria for listing under the
Environment Protection and Biodiversity Conservation Act 1999
of the Commonwealth were given due consideration before the regulation was made.
No. 37 Page 37, schedule 2 [16], line 15. Insert "every 12 months" after "nominations".
No. 38 Page 42, schedule 2 [24], lines 11-13. Omit "and critically endangered species, populations and ecological communities". Insert instead "species, populations and ecological communities and critically endangered species and ecological communities".
No. 39 Page 42, schedule 2 [25], lines 14-15. Omit all words on that line. Insert instead:
[25] Sections 220P (1), 220T (1), 220Y (2) (a)
Insert "or critically endangered species or ecological community" after "endangered species, population or ecological community" wherever occurring.
[26] Section 220Q Identification of critical habitat
Insert "and each critically endangered species and ecological community" after "ecological community" in section 220Q (1).
No. 40 Page 43, schedule 2 [27], lines 3-6. Omit all words on those lines. Insert instead:
(b1) was authorised by a property vegetation plan approved under the
Native Vegetation Act 2003
, being an act that had the benefit of biodiversity certification of the native vegetation reform package under Division 10 when the plan was approved, or
No. 41 Page 43, schedule 2 [29], lines 15-21. Omit all words on those lines. Insert instead:
(a) clearing of native vegetation that constitutes a routine agricultural management activity,
(b) a routine farming practice activity (other than clearing of native vegetation),
No. 42 Page 44, schedule 2 [29], lines 29-32. Omit all words on those lines. Insert instead:
(3) This section does not authorise the doing of an act:
(a) if it exceeds the minimum extent reasonably necessary for carrying out a routine agricultural management activity or routine farming practice activity, or
No. 43 Page 47, schedule 2 [38], proposed section 220ZVA, line 8. Omit all words on that line. Insert instead:
and threat abatement strategies and their effectiveness, and
(d) contains a status report on each threatened species, where information is available, and
(e) sets out clear timetables for recovery and threat abatement planning and achievement.
No. 44 Page 47, schedule 2 [38], proposed section 220ZVB, lines 11-12. Omit "As soon as practicable after the commencement of this section, the". Insert instead "The".
No. 45 Page 47, schedule 2 [38], proposed section 220ZVB. Insert after line 13:
(2) The Priorities Action Statement must be completed as soon as practicable and no later than 12 months after the date of assent to the
Threatened Species Legislation Amendment Act 2004
.
No. 46 Page 48, schedule 2 [38], proposed section 220ZVD, lines 1-2. Omit all words on those lines. Insert instead:
(3) The Director-General must adopt the Priorities Action Statement or amendment (with or without alterations) within 4 months after the end of the period allowed for the public comment on the draft statement or amendment.
No. 47 Page 48, schedule 2 [39], proposed section 221NA. Insert after line 25:
(3) A regulation that provides that development or an activity of a specified type does not constitute development that is likely to significantly affect threatened species, populations or ecological communities, or their habitats, is not to be made unless the Minister has certified in writing that the development or activity is of minimal environmental impact on threatened species, populations and ecological communities, and their habitats.
No. 48 Page 49, schedule 2 [42] (proposed section 221ZG). Insert after line 24:
(2) The Minister may confer biodiversity certification even if the native vegetation reform package does not comprise all the elements of the package.
(3) The Minister may, by order published in the Gazette, suspend biodiversity certification of the native vegetation reform package if the composition of the package changes after its certification (for instance by any amendment of the
Native Vegetation Act 2003
or regulations under that Act, or by the approval or amendment of a State-wide standard or target or of a catchment action plan). The Minister may by order published in the Gazette lift any suspension under this subsection.
(4) The Minister may, in an order conferring biodiversity certification or in another order published in the Gazette, exclude from the certification of the native vegetation reform package any specified class of activity.
(5) In deciding on any action under this section, the Minister is to have regard to the likely impact of the native vegetation reform package (or any relevant aspect of its operation) on the achievement of the objects of this Part.
No. 49 Page 49, schedule 2 [42], lines 25-39. Omit all words on those lines. Insert instead:
221ZH Effect of biodiversity certification
While biodiversity certification of the native vegetation reform package is in force, any activity on land within the area of operations of each catchment management authority has the benefit of that biodiversity certification (except any activity excluded from certification under section 221ZG (4)).
Note
. Biodiversity certification has the following effects:
(a) the clearing of native vegetation as authorised by a property vegetation plan that is approved while the clearing has the benefit of biodiversity certification is a defence to a prosecution for certain offences under Part 8A of the NPW Act, and
(b) development consent to clearing of native vegetation that has the benefit of biodiversity certification does not require the preparation of a species impact statement or consultation between Ministers. (See section 14 (4) of the
Native Vegetation Act 2003
.)
No. 50 Page 50, schedule 2 [42], line 1. Omit all words on that line. Insert instead:
221ZI Suspension of certification in connection with implementation of package
No. 51 Page 50, schedule 2 [42] (proposed section 221ZI), lines 2-7. Omit all words on those lines.
No. 52 Page 50, schedule 2 [42], line 9. Omit "or revoke".
No. 53 Page 50, schedule 2 [42], line 18. Omit "or following the revocation".
No. 54 Page 50, schedule 2 [42] (proposed section 221ZJ), line 36. Omit "or revocation".
No. 55 Page 50, schedule 2 [42], proposed section 221ZJ, line 37. Insert "within 14 days" after "given".
No. 56 Page 51, schedule 2 [42], proposed section 221ZJ. Insert after line 3:
(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.
No. 57 Page 51, schedule 2 [42], proposed section 221ZK, lines 7-10. 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.
No. 58 Page 51, schedule 2 [42], proposed section 221ZK. Insert after line 29:
(3) In deciding any matter under this section the Minister is to have regard to the objects of this Part.
No. 59 Page 53, schedule 2 [42], proposed section 221ZN. Insert after line 8:
(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. 60 Page 53, schedule 2 [42]. Insert after line 10:
221ZO Reassessment of biodiversity certification
(1) 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. 61 Page 53, schedule 2 [42], proposed section 221ZP, line 28. Insert " within 21 days" after "given".
No. 62 Page 53, schedule 2 [42], proposed section 221ZP. Insert after line 34:
(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. 63 Page 54, schedule 2 [42], proposed section 221ZQ, lines 36-38. 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. 64 Page 55, schedule 2 [42], proposed section 221ZR, line 17. Insert "(not exceeding 3 years)" after "period".
No. 65 Page 55
,
schedule 2. Insert after line 36:
[45] Section 290
Omit the section. Insert instead:
290 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 Division 11 of Part 7A, 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.
No. 66 Page 59, schedule 3.1 [4], lines 4-8. Omit all words on those lines. Insert instead:
(a2) was authorised by a property vegetation plan approved under the
Native Vegetation Act 2003
, being an act that had the benefit of biodiversity certification of the native vegetation reform package under Division 4 of Part 7 of the
Threatened Species Conservation Act 1995
when the plan was approved, or
No. 67 Page 59, schedule 3.1 [5], lines 13-18. Omit all words on those lines. Insert instead:
(a2) was authorised by a property vegetation plan approved under the
Native Vegetation Act 2003
, being an act that had the benefit of biodiversity certification of the native vegetation reform package under Division 4 of Part 7 of the
Threatened Species Conservation Act 1995
when the plan was approved, or
No. 68 Page 60, schedule 3.1 [7], lines 7-13. Omit all words on those lines. Insert instead:
(a) clearing of native vegetation that constitutes a routine agricultural management activity,
(b) a routine farming practice activity (other than clearing of native vegetation),
No. 69 Page 61, schedule 3.1 [7], lines 19-22. Omit all words on those lines. Insert instead:
(3) This section does not authorise the doing of an act:
(a) if it exceeds the minimum extent reasonably necessary for carrying out a routine agricultural management activity or routine farming practice activity, or
No. 70 Page 66, schedule 3.3, lines 4-14. Omit all words on those lines. Insert instead:
(4) If the clearing of any native vegetation has the benefit of biodiversity certification under Division 4 of Part 7 of the
Threatened Species Conservation Act 1995
and also the benefit of biodiversity certification under Part 7A of the
Fisheries Management Act 1994
:
(a) an application for development consent for clearing is not required to be accompanied by a species impact statement or statements (as would otherwise be required under section 78A of the EPA Act), and
(b) the Minister is not required to consult with the Minister administering the
Threatened Species Conservation Act 1995
and the Minister administering the
Fisheries Management Act 1994
(as would otherwise be required under section 79B of the EPA Act).
Mr BOB DEBUS
(Blue Mountains—Attorney General, and Minister for the Environment) [9.51 p.m.]: I move:
That the Legislative Council's amendments be agreed to.
Mr MICHAEL RICHARDSON
(The Hills) [9.52 p.m.]: I will not detain the Committee for longer than is absolutely necessary. Some 70 amendments have resulted from the great winnowing process in the Legislative Council, during which some 200 amendments were moved. I sat in on a lot of the debate in the upper House and I am not sure that every member of the Legislative Council knew what he or she was voting for or against during consideration of the bill, which lasted for a couple of days. I am pleased to say that the Government accepted 11 of our amendments, although we think it could have been more generous. By moving those amendments we intended to make the legislation more robust and better able to do its job, which was also the Government's stated intention. Some of the amendments that the Government rejected would have strengthened the legislation and outcomes for the environment.
I am particularly disappointed that the Government chose to reject our amendments that would have allowed the Minister in exceptional circumstances to seek a second opinion on a listing from the Biological Diversity Advisory Council [BDAC]. The Government claimed in another place that our amendments would require the BDAC to act as a review body for the Scientific Committee's listing of decisions in cases where it is asked to do so by the Minister and would elevate the BDAC so that it duplicates the role of the Scientific Committee. That was not the Opposition's intention. In fact, the amendments would have allowed the Minister to seek advice from the BDAC in a handful of cases only.
Instead of his simply referring a controversial nomination back to the Scientific Committee for consideration, it would have provided a mechanism for circumventing the process. Under our proposal, if the BDAC had confirmed a listing it would have stood and there would have been no yo-yoing to and from the Scientific Committee and no political pressure brought to bear on the Minister by vested interests. That is what I was talking about earlier when I said that I believe that our amendments would have provided greater surety and certainty for everyone—for developers, farmers, conservationists, scientists and for the environment.
Many of the Opposition amendments that the Government accepted relate to endangered populations. I am pleased that the Government recognised the wisdom of the arguments put by the Hon. Rick Colless in this regard. He said that he believed what was proposed originally was an oversight, and seven or eight amendments to the legislation deal with this issue. The bill did not classify the category of "critically endangered population", and the amendments moved by the Hon. Rick Colless and passed by the upper House deal with that issue. Amendments Nos 17, 18 and 19 will allow the biodiversity certification of individual catchment action plans in advance of the certification of the entire native vegetation reform package, and allow the Minister to confer biodiversity certification even if the native vegetation reform package does not comprise all elements of the package.
Farmers were concerned specifically that they would be able to prepare and have their property vegetation plans certified only when the catchment action plan for the particular area in which they live was certified. Under the original legislation, that could not take place until all elements of the native vegetation reform package were completed. In essence, the Government amendments have gone further in that biodiversity certification can now be granted when an unspecified number of elements have been completed. That begs the question—and a number of people both inside and outside Parliament have asked me this—exactly what does biodiversity certification mean? What is the Minister saying when he signs off on an element of the package or the total package? Indeed, how can the Minister sign off on the package when an unspecified number of elements of that package are not complete and have not been signed off on?
Our amendment specifically targeted the problem facing farmers that not all catchment management authorities would perform as one. Some would drag the chain in terms of completing their catchment action plans and many other elements of the native vegetation reform package would not be completed. We wanted to provide certainty for farmers so far as their property vegetation plans were concerned and ensure that, once the catchment action plan was signed off on and biodiversity certified, the property vegetation plan could also be signed off on and farmers could be allowed to get on with their job of growing food and creating wealth for the State of New South Wales.
The Minister might correct me if I am wrong, but the Government's amendments water down the original legislation to a far greater extent than the proposal presented by the Opposition in the other place. In the Legislative Council the Minister claimed that our amendment would undermine the bill's provisions relating to biodiversity certification. I maintain that the amendments that have been passed by the Legislative Council in fact undermine the bill's provisions to a greater extent than our proposal. How do the Opposition proposals undermine the bill's provisions relating to biodiversity certification when the Government's amendments do not? Excuse my cynicism, but the difference is that one amendment was proposed by the Opposition and the other by the Government. Amendments Nos 21 to 24 abolish the Minister's right to revoke biodiversity certification, an issue of concern to farmers. New amendment No. 26 passed in the upper House states in part:
(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.
That conflicts with the other amendments that have been passed by the upper House. The Government intends either to abolish the Minister's right to revoke biodiversity certification so that he would simply be able to suspend it until they get it right, or it does not. But the Government cannot have it both ways. The words "revoke" or "revocation" ought to be removed from the amendments and, indeed, from the legislation if that is the Government's intention. Amendment No. 27 improves and clarifies the purpose of biodiversity certification in a fairly substantial way. The amendment states:
(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.
That is certainly an important component of the legislation. It was the Government's expressed intention—and it was certainly ours—that ultimately this bill will lead to an improvement in biodiversity values and a reduction in the number of vulnerable threatened and critically endangered species. Many of the amendments passed by the upper House seem to be a clear case of dotting the i's and crossing the t's. That includes amendment No. 28, which states:
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.
I hope that in dealing with any matters associated with threatened species the Minister would have regard to the objects of the Act. It is totally superfluous for Parliament to insert that type of clause into any legislation. Obviously the objects of the Act have to be taken into account, no matter what the legislation might be. The same is true of amendment No. 25, which relates to notice of the granting or suspension of biodiversity certification being given within 14 days. Many of the minor amendments appear to have been drafted by the Environmental Defender's Office [EDO]. I wonder why the EDO does not become a wholly paid-up subsidiary of the Minister's office because it certainly does an awful lot of work fine-tuning the Government's environment legislation.
The EDO finds it necessary to do that because the Government does not get this sort of complex legislation right the first time. That is why the original threatened species legislation has been amended and why this bill so fundamentally changes the way in which we will handle threatened species in the future in this State. Equally, amendments have tended not only to dot the i's and cross the t's, they have been very proscriptive, including amendment No. 29, which states in part:
(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 …
The Opposition supports consultation but some of these amendments take the consultation process to the nth degree. Indeed, if the Government had accepted the Opposition's idea that the Biological Diversity and Advisory Committee, as it is now constituted, could have performed a more significant role, perhaps some of these additional clauses might not have been needed. Amendments Nos 40 to 42 and 67 to 69 create the new concept of the clearing of native vegetation that constitutes a routine farming practice activity. The Opposition believes that the Government has dealt with concerns raised by the New South Wales Farmers Association in a clumsy way. The Opposition's amendment was superior in that it added to proposed section 118G:
(j) any activity certified by the Director-General of the Department of Primary Industries by order published in the gazette to be a routine agricultural management activity.
The new category of a routine farming practice activity has never been adequately explained, certainly in debate in Parliament. It is important and appropriate for the Minister to do so in reply. Many honourable members want to know exactly how the Government anticipates that proposed new sub-section 118G (1) will work. The Opposition also moved an amendment in the Legislative Council that would have deleted from subsection 118F (2) (1) the word "imminent", so that it would have read "any activity reasonably considered necessary to remove or reduce a risk of serious personal injury or damage to property". Once again the rejection of that amendment has not been satisfactorily dealt with. We are concerned that farmers in particular may not be able to mitigate against damages or, indeed, against prosecution under the occupational health and safety legislation because they are only able to carry out these activities if they can remove or reduce an imminent risk of serious personal injury or damage to property. That becomes a defence under the legislation but the Opposition believes that the word "imminent" should not be included in that subsection.
In the other place the Hon. Rick Colless also moved an amendment to delete the words "in the Western Division as a qualifier for air strips" in proposed section 118G (2) (i). The Minister wrote to me a lengthy letter explaining that this relates to the long distances involved in the Western Division and the fact that often there was no practical alternative to the use of light aircraft to get from point A to point B, and that it related also, of course, to the low population densities in the Western Division. I am prepared to accept this explanation, as I would hope is the Hon. Rick Colless. This was an issue that he felt strongly about, and there was considerable debate on it in the upper House. Another of the Coalition amendments that the Government accepted was amendment No. 35. This relates to a review of the legislation. The amendment provides that the Minister is to review the Act. The amendment inserts a new section 290 to provide, in subsections (1) and (2):
(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 Division 11 of Part 7A, 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
.
The best thing to be said for the Government's management of the debate on this legislation is that it was prepared to accept that Opposition amendment providing for a review. There is absolutely no question that a review will be needed. I have expressed the hope that this legislation will work better than the previous Threatened Species Act to maintain biodiversity and to remove the threat to the vulnerable endangered species in this State. I remain highly sceptical about the way the Government is going about doing that because, superior as this bill might be to the previous legislation, it is based on the premise that the Government will do the job. We on this side of the House are concerned about biodiversity and the conservation and preservation of our environment. We certainly are concerned to ensure that no more species of this State are made extinct. I still question whether this Threatened Species Legislation Amendment Bill will achieve that aim. This legislation is certainly superior to the legislation that was brought into this Chamber about a month ago, but we will keep our fingers crossed as to the final outcome. [
Time expired.
]
Mr ANDREW STONER
(Oxley—Leader of The Nationals) [10.12 p.m.]: The Nationals remain concerned about the whole issue of threatened species in New South Wales. Naturally, from the point of view of farmers and landholders of regional and rural New South Wales, but also those in coastal New South Wales—coastal development being extremely important to The Nationals—there must be the right balance in legislation relating to threatened species and, for that matter, native vegetation, to ensure that farmers may remain productive by working and developing their own lands, whilst at the same time pursuing conservation objectives. Farmers and landholders also must have available to them provisions relating to subdivision and residential land, as is the case on the New South Wales coast, where a number of concerns are held, particularly since the abolition of the Coastal Council.
The Nationals have watched carefully the passage of this legislation and have spoken in both Houses when it has been debated. We note that a great number of amendments have been moved and a smaller but significant number made to the legislation that was originally put before this place. Again I make the observation that, in relation to these sorts of issues we are trying to get the right balance between productivity of farming land and conservation issues. I repeat that the great majority of farmers are interested in conservation. They are also striving to achieve a balance in development, particularly along the coastal strip. But, again, the Government seems to have got it wrong. The legislation presented in this place was amended substantially by Government, Opposition and crossbench amendments. There was, therefore, understandable concern about the quality of the original legislation and the extent of negotiation entered into by the Government on this critical legislation.
I will now address specifically issues related to primary producers, because The Nationals traditionally have been the political party representing the farmers of this State. Bear in mind also that The Nationals are concerned about development issues on the North Coast in particular, but also in relation to the South Coast and, for that matter, the City of Sydney, where development seems to have escaped much of the scrutiny provided by this bill and other legislation. Though this legislation contains some positive measures for primary producers of this State, The Nationals are of the view that the Government did not go far enough in freeing up the restrictions placed on the farming community.
The New South Wales Nationals sought to introduce into the bill a further two key amendments that would have relaxed the imposition that the Act has on farmers attempting to get on with their job of producing the food, fibre and building materials on which this State survives. First, The Nationals moved to have the New South Wales Scientific Committee answerable to the Minister by granting the Minister the power to refer a decision back to the Biological Diversity Advisory Committee, and if the committee recommended that the decision be reversed, then the Minister could reject the final decision of the Scientific Committee. This process could greatly enhance the accountability of the Scientific Committee and cause it to be far more circumspect about the decisions it makes, sometimes based on dubious scientific evidence. The New South Wales farming community has long called for such accountability.
Second, The Nationals attempted to make the Property Vegetation Plan, as required under the Native Vegetation Act, the absolute pinnacle of approval that farmers should require, and that such approval should not be able to be challenged in any circumstances. Although the new bill is an improvement on the parent Act in this regard, it still contains conditional approvals, and the Minister for the Environment still has the power of veto over the work that a farmer may wish to carry out on his land. The end result for New South Wales farmers continues to be a convoluted process of planning, certification and regulation, which is confusing, costly and time-consuming for the farmer and will be of little benefit to threatened species.
In addition, the Government also has relieved itself of responsibility for preparing and implementing species recovery plans for species that are under threat. The Nationals also sought to clarify a number of inconsistencies in the bill which farming and associated industries are confused about. The first of those relates to the description of routine agricultural activities, with many activities that are day-to-day activities not allowed to be categorised as routine. Such normal farm duties as spraying weeds that are not listed under the Weeds Act may not be classified as routine activities. Here we have a level of red tape relating to the huge number of weeds in various regions of this State, at a time when the Government and government departments may be behind the eight ball in terms of the growth and influence of weeds in various areas of the State. Here we are continuing to impose a convoluted regulatory process—red tape, if you like—upon farmers.
The Nationals attempted to have this clarified by granting to the Director-General of the Department of Primary Industries, as the lead agency on agricultural matters, the power to determine what is a routine agricultural activity. Unfortunately, the Government chose to oppose the suggestion. The second issue related to the construction, operation and maintenance of airstrips, which is considered to be a routine activity in the Western Division but not a routine activity in the Central and Eastern divisions of the State. Farmers at Nyngan can construct, operate and maintain an airstrip on their properties, but farmers at Narromine and Coonamble cannot maintain their airstrips without the threat of being prosecuted under the Threatened Species Conservation Act.
The Government rejected the opportunity to clarify that problem, and the same problem exists under the Native Vegetation Act. Although The Nationals welcome some of the amendments introduced by the Government and some of the consultation that has taken place with the New South Wales Farmers Association we believe that the Government has not gone far enough to resolve the imbalance between development of agricultural properties and concerns about the impact on threatened species. The bill, as amended, presents farmers with a significant amount of red tape—or should I say green tape—to overcome.
Mr ANDREW FRASER
(Coffs Harbour) [10.21 p.m.]: The Minister for the Environment and I have engaged in adversarial debate across the Chamber on many of these threatened species, native vegetation and environmental matters.
Mr Daryl Maguire:
That's the understatement of the year.
Mr ANDREW FRASER:
My colleague said that is an understatement, and I agree. I am amazed that the Government would introduce legislation that attracted 200 amendments and accept 70 of them. It indicates that the Government is not examining the issues that need to be dealt with.
Mr Alan Ashton:
It is listening.
Mr ANDREW FRASER:
The honourable member may say that, but if he were to look at development in country areas he would realise that, as I have said in this House many times, when a problem is discovered in Sydney it is fixed in the bush. The Government admits that no old growth is left in Sydney and the majority of native species has been lost, so to salve its conscience it decides that rural landholders, such as me, will be penalised by this type of legislation. I draw the attention of honourable members to regulations introduced with much fanfare by the Minister for Infrastructure and Planning last week. He claimed that it was fantastic that the regulations were in the public arena for discussion and that the farming community supported them. He read into
Hansard
media releases from the New South Wales Farmers Association and the Forest Products Association. But the regulations have deferred until January 2005 the clearance distances for infrastructure on any properties other than those in the Western Division.
The Minister for Infrastructure and Planning told us only half the story, and what we have before us is only half the story. The real strength of the legislation will be in the regulations imposed upon landowners and small landholders across regional and rural New South Wales. People in Sydney will be able to do whatever they want on their properties regardless of property vegetation plans. But in the bush onerous regulations will be placed on private landowners, who thought at one stage that they had some sort of freehold rights. For the past nine years most areas of land reserved by the Government have been either under private ownership or forestry management and ownership. They have been deemed to be in such pristine condition that they could be transferred to the National Parks and other management regimes. For generations they have been well preserved by conservation-oriented but not preservation-oriented regimes.
It is frightening to think that even though the Government accepted 70 amendments and considered 200, at the end the day the strength of the legislation will be in the regulations. I do not want any threatened or endangered species to be damaged or harmed in any way, shape or form, nor do any of my constituents. But I suggest to the Minister, as I suggested in the second reading debate, that the regulations he will add to the legislation may encourage some farmers, private property owners and developers to adopt a shoot, shovel and shut up mentality. We want integrated development— whether it be farming, residential or commercial—within our communities. We want to ensure that humans and our native species can live side by side, and we will work to ensure that happens. The Government, in its rush to appease the Greens and thank them for their preferences in a number of electorates at the last election, is doing a disservice not only to the landowners but to all the people of New South Wales.
It is sad that the agricultural activities that most farmers deem to be routine are not defined in the native vegetation legislation. Minister Knowles ignored my repeated requests to guarantee a definition of what constitutes routine agricultural maintenance activities and clearance distances for infrastructure in areas east of the Western Division. The regulations so lauded by him in the House last week are yet to be defined. The Minister will receive a report by 2005 with no promise that the regulations will come before this House or undergo any further public consultation. That is a demonstration that the Government is not serious about true consultation with the farming and development communities in New South Wales. It is sad. The Minister for the Environment would concede that preservation could sometimes cause a great loss of biodiversity. Preservation has resulted in the build-up of native and natural fuels on the forest floor. When fires occur biodiversity is destroyed.
I again draw to the attention of honourable members the Bobo fires in 1994, when the Coalition was in government. The National Parks and Wildlife Service knew it had been burning for eight weeks before anything was done about it. We had a scorched-earth policy from Ebor right through to Armidale. I was devastated by the amount of native flora and fauna destroyed in the fire. We must accept that we have altered the landscape in New South Wales and, indeed, the whole of Australia. We have allowed native weeds and plants to take over and create fire hazards. To some extent that can be controlled by grazing, but grazing was stopped. The fire in the Guy Fawkes River National Park devastated the native flora and fauna. We did the community a disservice. Under this bill we could again face those sorts of problems. We must start to talk about management to make sure that what is left is not necessarily preserved but protected so that we have something to leave to the next generation.
I commend State Forests of New South Wales, which is now subsumed under the Department of Primary Industries, and the farming community for their stewardship of this State's natural resources. The shadow Minister for the Environment and I went to the Pine Creek State Forest, which is now part of the Bongil Bongil National Park. We witnessed the effects of a koala management plan in a managed, working forest that has resulted in the preservation of the largest colony of koalas on the North Coast. However, I fear the future under the management regimes of this Government. If management practices such as controlled hazard reduction burnings are not adopted it will take only one hot, hard fire going through that area to wipe out that koala colony.
The Minister for the Environment lives in the Blue Mountains, but I invite him to come out to the bush on the North Coast. I know the Minister is sick and tired of hearing me ask him to do so, but I wish he would come up to the North Coast and commend some of the farmers for the voluntary preservation and conservation techniques they have adopted. I ask the Minister to visit the North Coast and assist the farmers to get on with their job without regulating them to such an extent. Under the Native Vegetation Act and the Threatened Species Act they will be fined, penalised and hindered for doing what they have done best for generations: preserve their land in a condition that enables them to pass it on to future generations while simultaneously looking after native vegetation and native fauna. Their efforts are directed towards ensuring that future generations will be able to look back on the management of natural resources in this State with a measure of pride. In the Minister's rush to please the Greens, he has done this State a great disservice.
Mr BOB DEBUS
(Blue Mountains—Attorney General, and Minister for the Environment) [10.31 p.m.]: When the Threatened Species Legislation Amendment Bill was last before the Legislative Assembly I indicated that before debate commenced in the Legislative Council I would speak to various groups that have an interest in it. I also indicated that any sensible suggestions made by interest groups would be taken on board and that the bill would be amended accordingly. That is what has happened. For the record, I point out that approximately 200 amendments were moved in the upper House, but 70 were accepted, 22 were agreed with the New South Wales Farmers Association and another 11 were agreed with the Opposition. Several Opposition members seemed to be objecting to the fact that I accepted an amendment either moved by the Opposition or proposed by the New South Wales Farmers Association. Fortunately, the Farmers Association is not objecting. I quote from a letter that I received on 21 October from the President of the New South Wales Farmers Association, Mr Mal Peters:
I am writing to thank you for the amendments you are proposing to introduce with respect to the Threatened Species Conservation Act, which will go a long way to addressing farmers' major concerns of the original Bill.
The letter goes on to thank me and my staff for the work we undertook in relation to this matter. The letter also states:
I look forward to working with you on any subsequent regulations and/or other matter relating to this Bill.
I make that point merely to correct—or perhaps apply an antidote—some of the things that have been said, especially by The Nationals. Of course, in the other half of the 70 accepted amendments the Government accepted arguments put by the conservation movement. I think this means that the Opposition and the Farmers Association got more amendments accepted than the Government and the conservation movement. The amendments were accepted to improve the functioning of the legislation. I assert with some precision that the Government did not accept from either the New South Wales Farmers Association or conservationists amendments that would have fundamentally altered the thrust of the Government's reforms, or shifted the balance that this bill achieves in one direction or another.
I refer to some of the matters raised by members opposite. The first matter, which is closely related to a concern expressed by the Farmers Association, concerns the biodiversity certification of the native vegetation reform package. The matter was raised by the honourable member for The Hills and by the New South Wales Farmers Association when debate began in the other place. The Farmers Association questioned whether certification of the native vegetation reform package, as proposed when the legislation went before the Legislative Council, would be able to be issued to allow catchment management authorities [CMAs] to issue single, integrated property vegetation plans [PVPs] at the time the Native Vegetation Act commences. The bill, as it was drafted, requires the Minister for the Environment to certify the package as a whole, as defined in section 126B of division 4 and section 221ZF of division 10 of the bill as it then was.
All of the components of the package defined in paragraphs (b), (c) and (d) of those sections may not be finalised before 1 February 2005, which is the expected date of commencement of the Native Vegetation Act and its regulations. As a consequence, the Minister for the Environment and the Minister for Primary Industries would not be in a position to certify the package to allow CMAs to begin using PVPs that would be exempt from the regulatory provisions of the Threatened Species Conservation Act and the Fisheries Management Act. It is the Government's policy that the new integrated PVP system should commence on 1 February 2005. Following discussions involving the Farmers Association and my colleague the Minister for Infrastructure and Planning, and Minister for Natural Resources, I asked Parliamentary Counsel to draft amendments that would enable Ministers to certify the package, even if all the components of the package defined in paragraphs (b), (c) and (d) of section 126B and section 221ZF were not finalised at the time of certification.
The exact intention of that amendment is to achieve the flexibility that is required to enable the Ministers to certify the package no later than the end of January 2005, based on paragraph (a) of section 126B and section 221ZF, and the guidelines provided for in paragraph (d) that are in existence at the time, or exclude from certification any specified activity or land. That will allow the Ministers to confer certification even if the protocols and guidelines relating to specific activities are not finalised—for example, guidelines relating to private native forestry. Those amendments also provide for Ministers to suspend certification of the package, if subsequent changes are made to the package that have not been approved by the Ministers. The amendment as passed effectively ensures that the Ministers must certify subsequent components of the package, as defined in paragraphs (b), (c) and (d) of section 126B and section 221ZF, as they are finalised or changed.
To some extent, I apologise to the Committee for engaging in a discussion of the matters contained in this bill in great detail. However, I want to demonstrate that the Government paid the closest attention to the requirements of the New South Wales Farmers Association and ensured that biodiversity certification for the native vegetation reform package—after amendments that I have mentioned were passed—could be sufficiently flexible to meet the needs of the farming community across the State. I refer briefly to the amendments moved by the Opposition and raised by the honourable member for The Hills concerning the obtaining of a second opinion from the Biological Diversity Advisory Council. Although I appreciate that the amendments the Opposition moved in this respect were intended to create greater accountability for the scientific process, I believe that the amendments would have only complicated the listing process by in effect duplicating the function of the Scientific Committee.
The amendments that the honourable member referred to would have meant that two bodies of scientific experts would have been involved in listing decisions instead of one body. The proposal would have allowed Ministers to reject proposed listing decisions based on a Biological Diversity Advisory Council recommendation made on scientific grounds. That would be rightly recognised as diverging the independence of the Scientific Committee, and for that reason the amendments cannot be supported. Several members opposite referred to routine agricultural activities and routine farming activities and quite a few, particularly those representing The Nationals, appeared to be hopelessly confused about the provisions that have been included in the bill in that respect. The New South Wales Farmers Association raised concerns about the way in which the bill as originally drafted would require the development of a regulation to deal with non-native vegetation-related routine agricultural management activities [RAMAs].
The New South Wales Farmers Association expressed concern that the original bill would require a definitive list of RAMAs to be included in the regulation, and that that list would, in effect, be impossible to achieve. It would be a list that was never finished, an endlessly accreting list. Following discussions with the New South Wales Farmers Association the Government agreed to an amendment that would refer to such non-native vegetation activities as a "routine farming practice activity, other than clearing of native vegetation". That will provide a far simpler system and is an approach that the New South Wales Farmers Association has accepted. It will enable the regulation to be drafted in such a way that it will deal with what activities are not covered in the definition of a routine farming practice activity, rather than those that are covered.
In consequence, that list will be very short, as it is not the Government's intention to intrude the Threatened Species Conservation Act into what are obviously routine farming activities such as spraying a paddock, collecting domestic firewood or shifting rocks that pose a hazard to the everyday work of the farming community. The bill will address farmers' long-held concerns about the application of environmental legislation to day-to-day farming activities. The bill does not reverse the onus of proof where it makes routine agricultural management activities a defence to prosecution under the current Act. Routine agricultural activities are already a defence to prosecution under the existing Act and in practice there will be no difference between the current Act and the bill in that regard.
Finally, I assert again that biodiversity certification and the PVPs proposed in the bill, and legislation previously introduced by my colleague the Minister for Infrastructure and Planning, will provide security to carry out farming activities without the need for further approvals. The Government is committed also to that outcome, and through the bill and that introduced by my colleague we have delivered on that commitment. Farmers will be able to request expert staff from their local CMA to come onto their property and use the new PVP developer to analyse and plan for native vegetation management. If the farmers' plans meet the necessary standards, they will be issued with a PVP which can last up to 15 years. While ever that PVP is in place a farmer will not have to worry about getting any other approvals for any on-farm work.
The PVP will have embedded within it all the necessary approvals under the threatened species legislation. In other words, the bill provides a mechanism to switch off threatened species regulation for farmers who hold a PVP from their local CMA. This will create a level of certainty that is without precedent in this area of natural resource management. However, switching off threatened species legislation is not something that the Government takes lightly. It is essential that there be proper checks and balances to ensure that threatened species issues are addressed adequately by the CMAs. Threatened species are not a renewable resource—as the honourable member for Coffs Harbour has so eloquently argued, when they're gone, they're gone.
The checks and balances provided through the mechanism of biodiversity certification of the native vegetation reform package allow the Government to ensure that threatened species issues are properly addressed. Under the bill a PVP will not become void if biodiversity certification is suspended. In fact, once approved they continue to be in force for up to 15 years. Removal of certification does not retrospectively invalidate a PVP or its effect of switching off threatened species legislation. I wanted to be clear on this point: the bill does not undermine that certainty and security provided to farmers already holding a PVP approved during the time in which certification was in place. For all the huffing and puffing of The Nationals opposite, I cannot see how it can be seriously argued that the Government has done anything but a very good thing with this bill, in ensuring that farmers have a level of certainty that they could never previously achieve, while on the other hand ensuring that threatened species are better protected than ever before. I commend the Legislative Council amendments.
Motion agreed to.
Legislative Council's amendments agreed to.
Resolution reported from Committee and report adopted.
Message sent to the Legislative Council advising it of the resolution.
Last modified 05/12/2007 16:32:24 :
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