Threatened Species Conservation Amendment (Biodiversity Banking) Bill
Page: 2858
In Committee
Clauses 1 to 5 agreed to.
Mr MATT BROWN: I seek leave to move the amendments to schedule 1 in globo.
Leave not granted.
Mr MATT BROWN (Kiama—Parliamentary Secretary) [10.34 a.m.]: I move Government amendment No. 1:
No. 1 Page 4, schedule 1 [4], lines 7-10. Omit all words on those lines.
Mr CHRIS HARTCHER (Gosford) [10.34 a.m.]: The New South Wales Coalition received these amendments at four o'clock yesterday afternoon. They deserve careful consideration and that consideration has been given to them. The position is that the Committee has now been confronted with vast slabs of amendments. The Minister has seen fit to have the Parliamentary Secretary move amendment No. 1, but without any explanation as to its genesis, its purpose or its reasoning. I note the arrival of the Minister in the Chamber. It is clear that the people of New South Wales are entitled to an explanation as to what underlies these amendments, why they have taken such a long time to get together, and why they have been served up so hurriedly and are now being rushed through Parliament when they were only delivered at four o'clock yesterday afternoon.
The Coalition expects the Minister to talk about what is happening: why the amendments are necessary and why there have been changes to the original legislation, so that—if not in the Legislative Assembly, which is treated in a cavalier fashion, as always—in the Legislative Council there can be some understanding as to what the New South Wales Government is trying to achieve. We can consider these amendments one at a time or we can be provided with an explanation from the Minister as to where he is going. That is the position in relation to amendment No. 1.
Mr BOB DEBUS (Blue Mountains—Attorney General, Minister for the Environment, and Minister for the Arts) [10.36 a.m.]: For the third time in the debate about this bill, we seem to have very considerable confusion—
Mr Chris Hartcher: On the part of the Government.
Mr BOB DEBUS: —at a procedural level, and there has been none whatsoever on the part of the Government.
Mr Chris Hartcher: Completely on the Government's part.
Mr BOB DEBUS: Don't be ridiculous!
Mr Chris Hartcher: Absolutely. You have had this bill going back and forth for months and have now produced the amendments.
Mr BOB DEBUS: Mr Chairman, the honourable member for Gosford's commentary is becoming ridiculous. The reason we are here this morning is that I accepted a request by the Opposition last night not to proceed with these amendments. We were ready to proceed with these amendments and gave extraordinarily long explanations as to why they were now before us. Last night there was some hesitation on the part of the Opposition about the way in which we should precisely present these amendments, so I agreed, as a matter of goodwill, to postpone the presentation of the amendments until now. I propose to move Government amendments Nos 1 to 62 in globo and address their intent by grouping them according to theme. There are 62 amendments, but if they are grouped according to theme rather than in numerical order it is indeed possible to make a sensible explanation of what we are proposing. I have already agreed to accept the Opposition's amendment. After I have moved the Government's amendments I propose to give a substantial explanation of what these amendments are designed to do.
Mr MICHAEL RICHARDSON (The Hills) [10.39 a.m.]: If the Minister is prepared to deal with the amendments in themes, in other words, essentially in groups of clauses, the Opposition would be happy to debate them along those lines.
Mr BOB DEBUS (Blue Mountains—Attorney General, Minister for the Environment, and Minister for the Arts) [10.39 a.m.], by leave: I move Government amendments Nos 1 to 62 in globo:
No. 1 Page 4, schedule 1 [4], lines 7-10. Omit all words on those lines.
No. 2 Page 5, schedule 1 [6], lines 3-12. Omit all words on those lines.
No. 3 Page 5, schedule 1 [6], proposed section 127. Insert after line 35:
deferred retirement arrangement has the meaning given by section 127ZN.
No. 4 Page 6, schedule 1 [6], proposed section 127, lines 1-5. Omit all words on those lines.
No. 5 Page 6, schedule 1 [6], proposed section 127. Insert after line 13:
mining authority means an authority, mineral claim or opal prospecting licence under the Mining Act 1992.
No. 6 Page 6, schedule 1 [6], proposed section 127. Insert after line 30:
petroleum title means a petroleum title under the Petroleum (Onshore) Act 1991.
No. 7 Page 6, schedule 1 [6], proposed section 127. Insert after line 37:
restorative action, in relation to a development or activity, means any rehabilitation or restoration action taken on the site of a development or activity after the development or activity has been substantially completed.
No. 8 Page 8, schedule 1 [6], proposed section 127B. Insert after line 14:
(3) The Minister is to have regard to the following principles when establishing the methodology under this section:
(a) biodiversity values should be conserved across appropriate local and regional scales,
(b) all types of ecological communities should be adequately conserved,
(c) any areas conserved under the biobanking scheme must be viable in the long term.
No. 9 Pages 8-9, schedule 1 [6], proposed section 127B, line 27 on page 8 to line 24 on page 9. Omit all words on those lines. Insert instead:
(6) The biobanking assessment methodology must include provisions that ensure that if an environmental contribution is required in respect of a development, the number of biodiversity credits required to be retired in respect of the development is reduced (or is nil) to take account of that environmental contribution.
(7) The biobanking assessment methodology may provide for any other matters required or authorised by this Part.
Note. See also Division 7, which allows the methodology to include provision for deferred retirement arrangements where restorative actions are taken in respect of a development.
(8) A biobanking agreement cannot be entered into, and a biobanking statement cannot be issued, until the biobanking assessment methodology is published under this section.
(9) In this section, environmental contribution means any of the following contributions, or a part of such a contribution, if the contribution or part is required, or is to be used or applied, for the conservation or enhancement of the natural environment:
(a) a contribution (including a dedication of land or other material benefit) required by a planning agreement under Subdivision 2 of Division 6 of Part 4 of the Environmental Planning and Assessment Act 1979,
(b) a contribution (including a dedication of land or levy) required under Subdivision 3 or 4 of Division 6 of Part 4 of that Act.
No. 10 Page 9, schedule 1 [6]. Insert after line 24:
127C Publication, amendment and review of biobanking assessment methodology
(1) The Director-General is to ensure that a copy of the biobanking assessment methodology is available for public inspection:
(a) at the head office of the Department, and
(b) on the website of the Department.
(2) Copies of the biobanking assessment methodology, or of any part of the methodology, are to be made available to the public on request, on payment of a fee (if any) fixed by the Director-General.
(3) Subject to any requirements of the regulations, the biobanking assessment methodology may be amended, repealed or replaced by further order of the Minister published in the Gazette.
(4) The regulations may:
(a) prescribe the circumstances in which the Minister is authorised to make an order that amends, repeals or replaces the biobanking assessment methodology, including by requiring consultation to be carried out before such an order is made, and
(b) require the Minister to undertake a periodic review of the biobanking assessment methodology and provide for consultation in respect of that review.
No. 11 Page 10, schedule 1 [6], proposed section 127C, lines 8-10. Omit all words on those lines. Insert instead:
(7) The Minister must consult with the Minister administering the Environmental Planning and Assessment Act 1979, the Minister administering Part 2 of the Mining Act 1992 and the Minister administering the Petroleum (Onshore) Act 1991 before entering into any biobanking agreement.
(8) The regulations may:
(a) require the Minister, before entering into a biobanking agreement with a person, to consider whether the person (whether or not an individual) is a fit and proper person to enter into, and fulfil the obligations imposed by, the agreement, and
(b) specify the matters that may be considered by the Minister in determining whether the person is such a fit and proper person.
No. 12 Page 11, schedule 1 [6], proposed section 127E, lines 31-34. Omit all words on those lines. Insert instead:
(c) where the land is subject to a mortgage or charge, the mortgagee or chargee has consented in writing to the agreement, and
(d) where the land is subject to a covenant, the Minister has consulted with the person entitled to the benefit of the covenant about the terms of the agreement, and
(e) where the land is the subject of a mining lease or mineral claim under the Mining Act 1992 or a production lease under the Petroleum (Onshore) Act 1991, the holder of the lease or claim has consented in writing to the agreement, and
(f) where the land is the subject of any mining authority or petroleum title not referred to in paragraph (e), the Minister has consulted with the holder of the mining authority or petroleum title about the terms of the agreement.
No. 13 Page 12, schedule 1 [6], proposed section 127E, lines 19-22. Omit all words on those lines. Insert instead:
(5) The Minister must not enter into a biobanking agreement for Crown land (within the meaning of the Crown Lands Act 1989), except with the consent of the Minister administering that Act.
(6) In this section, a reference to a person entitled to the benefit of a covenant includes, in the case of a covenant imposed under section 88D or 88E of the Conveyancing Act 1919, a reference to a prescribed authority (within the meaning of those sections) or a person entitled to exercise, on behalf of the Crown, the functions of a prescribed authority under those sections.
No. 14 Page 13, schedule 1 [6], proposed section 127G. Insert after line 37:
(2) The Minister must not agree to any variation of a biobanking agreement with the owners of the biobank site unless:
(a) if the land is subject to a mortgage or charge, the mortgagee or chargee has consented in writing to the variation, and
(b) if the land is subject to a covenant, the Minister has consulted with the person entitled to the benefit of the covenant about the variation, and
(c) if the land is the subject of a mining lease or mineral claim under the Mining Act 1992 or a production lease under the Petroleum (Onshore) Act 1991, the holder of the lease or claim has consented in writing to the variation, and
(d) if the land is the subject of any mining authority or petroleum title not referred to in paragraph (c), the Minister has consulted with the holder of the mining authority or petroleum title about the variation.
No. 15 Page 14, schedule 1 [6], proposed section 127G. Insert after line 20:
(6) In this section, a reference to a person entitled to the benefit of a covenant includes, in the case of a covenant imposed under section 88D or 88E of the Conveyancing Act 1919, a reference to a prescribed authority (within the meaning of those sections) or a person entitled to exercise, on behalf of the Crown, the functions of a prescribed authority under those sections.
No. 16 Page 14, schedule 1 [6], proposed section 127H, line 26. Omit "make an entry". Insert instead "register the agreement, variation or termination by making an entry".
No. 17 Page 16, schedule 1 [6], proposed section 127K, lines 1-9. Omit all words on those lines. Insert instead:
(3) Without limiting subsection (2), the Court may:
(a) in the case of proceedings brought in the Court by the Minister, award damages against the owner of a biobank site for a breach of the biobanking agreement that arose from an intentional, reckless or negligent act or omission by or on behalf of the owner or a previous owner of the land (being an act or omission of which the owner had notice) including a failure by the owner or previous owner to prevent another person from causing a breach of the biobanking agreement, and
(b) in any case, direct the owner of the biobank site to retire biodiversity credits of a specified number and class (if applicable) within a period specified in the order and, if the owner does not hold sufficient biodiversity credits to comply with the direction, to acquire the necessary biodiversity credits for the purpose of retiring them.
No. 18 Page 19, schedule 1 [6], proposed section 127P, lines 28-31. Omit all words on those lines. Insert instead:
(b) the Minister is satisfied that any adverse effect of the development on biodiversity values (including any future improvement to biodiversity values that would otherwise be achieved by the management actions on the biobank site) will be offset by the retirement of biodiversity credits by the public authority, or
No. 19 Pages 19-20, schedule 1 [6], proposed section 127P, line 34 on page 19 to line 41 on page 20. Omit all words on those lines. Insert instead:
(3) The Minister may, as a condition of granting consent under this section, direct the public authority to retire biodiversity credits of a number and class (if any) specified by the Minister and, if the person does not hold a sufficient number of biodiversity credits to comply with the direction, direct the public authority to acquire the necessary biodiversity credits for the purpose of retiring them.
(4) The Minister may approve an arrangement under which:
(a) the retirement of some or all of the biodiversity credits is deferred pending the completion of restorative actions that will restore or improve the biodiversity values affected by the development, and
(b) the biodiversity credits the retirement of which is deferred pending the completion of those actions are required to be transferred to the Minister.
(5) Division 7 applies in respect of any such arrangement as if it were a deferred retirement arrangement approved by the Director-General under that Division.
(6) The Minister may, by order published in the Gazette, vary or terminate the biobanking agreement relating to a biobank site without the consent of the owner of the biobank site if consent to development is granted under this section and the variation or termination is necessary to enable the public authority to carry out the development.
(7) The owner of a biobank site is not entitled to any compensation as a result of the variation or termination of an agreement under this section.
(8) Subsection (7) does not affect any right to compensation the owner may have under the Land Acquisition (Just Terms Compensation) Act 1991 or any other Act in respect of the development.
(9) This section does not apply:
(a) to any part of a biobank site that is a wilderness area within the meaning of the Wilderness Act 1987, or
(b) in respect of development proposed to be carried out by a public authority on a biobank site if the public authority is the owner of the biobank site and the proposed development is not inconsistent with the terms of the biobanking agreement.
(10) The consent of the Minister under this section is not an approval for the purposes of Part 5 of the Environmental Planning and Assessment Act 1979.
No. 20 Page 21, schedule 1 [6]. Insert after line 19:
127R Prospecting and mining on biobank sites
(1) The Minister may, by order published in the Gazette, vary or terminate a biobanking agreement without the consent of the owner of the biobank site if a mining authority or petroleum title is granted in respect of the biobank site and the Minister is of the opinion that the activity authorised by the mining authority or petroleum title:
(a) will adversely affect any management actions that may be carried out on the land under the biobanking agreement, or
(b) will adversely affect the biodiversity values protected by the biobanking agreement.
(2) If the Minister varies or terminates the biobanking agreement under this section, the Minister may, by order in writing to the holder of the mining authority or petroleum title, direct the holder to retire biodiversity credits of a number and class (if any) specified by the Minister within a time specified in the order.
(3) A direction may be given to a person under subsection (2) only if biodiversity credits have already been created in respect of management actions that were carried out or proposed to be carried out on the biobank site and have been transferred to any person.
(4) A person must not, without reasonable excuse, fail to comply with a direction under subsection (2).
Maximum penalty: 10,000 penalty units.
(5) It is not an excuse for a failure to comply with a direction under this section that the person who is the subject of the direction does not, at the time the direction is given, hold a sufficient number of biodiversity credits to comply with the direction.
Note. If the person who is the subject of the direction does not hold a sufficient number of credits to comply with the direction, the person may obtain the required number by purchasing them.
(6) A court that convicts a person of an offence under subsection (4) may, in addition to or in substitution for any pecuniary penalty for the offence, by order direct the person to retire, in accordance with this Part, biodiversity credits of a specified number and class (if applicable) within a time specified in the order and, if the person does not hold sufficient biodiversity credits to comply with the direction, to acquire the necessary biodiversity credits for the purpose of retiring them.
(7) The owner of a biobank site is not entitled to any compensation as a result of the variation or termination of an agreement under this section.
(8) Subsection (7) does not affect any right to compensation the owner may have under the Mining Act 1992, the Petroleum (Onshore) Act 1991 or any other legislation in respect of the grant of the mining authority or petroleum title.
(9) In this section:
conviction includes the making of an order under section 10 of the Crimes (Sentencing Procedure) Act 1999.
127S General provisions relating to variation or termination of agreements without consent of owner
(1) This section applies if the Minister proposes to vary or terminate a biobanking agreement without the consent of the owner of the biobank site by order under section 127P or 127R.
(2) The Minister is not to make such an order unless:
(a) written notice of the Minister's intention to vary or terminate the agreement has been given to the owner of the biobank site stating that the owner may make submissions to the Minister within the period specified in the notice (being a period of not less than 28 days), and
(b) the Minister has considered any submissions made by the owner of the biobank site, being submissions made within that specified period.
(3) If the order is made, a copy of the order is to be laid before each House of Parliament within 30 sitting days of that House, or such other period as may be prescribed by the regulations, after publication of the order.
(4) If the order varies the agreement, the owner of the biobank site may, by written notice given to the Minister, terminate the agreement, but only if:
(a) no biodiversity credits have been created in respect of the biobank site, or
(b) in a case where biodiversity credits have been created, the owner of the biobank site is the holder of all credits that have been created since registration of the biobank site (that is, none of the credits created have been retired) and all the credits are cancelled by the Director-General with the consent of the owner.
127T Activities authorised by mining authorities and petroleum titles not affected by biobanking agreement
Nothing in this Division:
(a) prevents the grant of a mining authority or petroleum title in respect of a biobank site in accordance with the Mining Act 1992 or the Petroleum (Onshore) Act 1991, or
(b) prevents the carrying out, on or in respect of a biobank site, of any activity authorised by a mining authority or petroleum title in accordance with the Mining Act 1992 or the Petroleum (Onshore) Act 1991.
No. 21 Page 24, schedule 1 [6], proposed section 127V. Insert after line 9:
(4) The transfer of a biodiversity credit does not affect any requirement imposed on the owner of a biobank site under a biobanking agreement. In particular, it does not affect any requirement that the owner carry out, or continue to carry out, management actions in respect of the land in relation to which the credit was created.
No. 22 Pages 25-26, schedule 1 [6], proposed section 127Z, line 30 on page 25 to line 8 on page 26. Omit all words on those lines. Insert instead:
127Z Grounds for cancellation of biodiversity credit
(1) The Director-General may cancel a biodiversity credit that is in force, or that has been suspended under this Part:
(a) if the Director-General is of the opinion that any management action in respect of which the biodiversity credit was created has not been carried out or completed, or is not being carried out, in accordance with the biobanking agreement, or
(b) if the person who applied for the creation of the credit provided any information to the Director-General in, or in connection with, the application that was false or misleading in a material particular, or
(c) if the credit was created in error, or
(d) if the holder of the credit has requested or agreed to the cancellation, or
(e) if authorised to do so by any other provision of this Act or the regulations.
(2) Without limiting subsection (1), if the Minister varies or terminates a biobanking agreement because of activities authorised by a mining authority or petroleum title granted in respect of a biobank site, the Director-General may cancel any biodiversity credits created in respect of the biobank site that have not been transferred by the biobank site owner.
No. 23 Pages 26-27, schedule 1 [6], proposed section 127Z, line 28 on page 26 to line 9 on page 27. Omit all words on those lines.
No. 24 Page 27, schedule 1 [6]. Insert after line 9:
127ZA General provisions relating to cancellation of biodiversity credits
(1) The Director-General cancels a biodiversity credit by making a recording in the register of biodiversity credits, in relation to the biodiversity credit concerned, that indicates that the credit is cancelled.
(2) The Director-General must give the holder of the credit notice in writing of the cancellation.
(3) No compensation is payable for the cancellation of a biodiversity credit.
(4) However, if a biodiversity credit is cancelled because of activities authorised by a mining authority or petroleum title granted in respect of a biobank site, the reasonable costs incurred by the biobank site owner in carrying out, before the cancellation, the management actions in respect of which the biodiversity credits were created are taken, for purposes of the Mining Act 1992 or the Petroleum (Onshore) Act 1991, to be a loss caused by deprivation of the possession or of the use of the surface of the land concerned as a result of the exercise of the rights conferred by the mining authority or petroleum title.
(5) If a biodiversity credit is cancelled, the Minister may vary or terminate the relevant biobanking agreement (with or without the consent of the owner of the biobank site) to make it clear that any obligation to carry out, or to continue to carry out, a management action that arises only because of the creation of that credit ceases to have effect.
(6) If the variation or termination is made without the consent of the owner:
(a) the variation or termination is to be made by the Minister by order published in the Gazette, and
(b) a copy of the order is to be laid before each House of Parliament within 30 sitting days of that House, or such other period as may be prescribed by the regulations, after publication of the order.
(7) The Minister is not to make an order referred to in subsection (6) unless:
(a) written notice of the Minister's intention to vary or terminate the agreement has been given to the owner of the biobank site stating that the owner may make submissions to the Minister within the period specified in the notice (being a period of not less than 28 days), and
(b) the Minister has considered any submissions made by the owner of the biobank site, being submissions made within that specified period.
(8) The cancellation of a biodiversity credit does not prevent the Minister from seeking an award of damages against the owner of a biobank site for a breach of a biobanking agreement.
No. 25 Pages 27-28, schedule 1 [6], proposed section 127ZB, line 23 on page 27 to line 19 on page 28. Omit all words on those lines. Insert instead:
127ZB Application for retirement of biodiversity credits
(1) The holder of a biodiversity credit that is in force may, by application in writing to the Director-General, retire the credit.
Note. Once the creation of a biodiversity credit is registered, it remains in force unless it is cancelled or retired—see section 127U.
(2) Any application to retire a biodiversity credit may be made by the holder of the credit:
(a) for the purpose of complying with a credit retirement condition specified in a biobanking statement, or
(b) for the purpose of complying with a direction made by the Minister or a court under this Part or under the National Parks and Wildlife Act 1974, or
(c) for the purpose of complying with a condition of an approval granted by the Minister under Part 3A of the Environmental Planning and Assessment Act 1979 in respect of a project to which that Part applies, or
(d) on a voluntary basis.
(3) If the Director-General accepts the application, the Director-General is to retire the biodiversity credit.
Note. Biodiversity credits may also be retired under Division 7.
127ZC General provisions relating to retirement of biodiversity credits
(1) The Director-General retires a biodiversity credit by making a recording in the entry relating to the credit in the register of biodiversity credits to indicate that the credit has been retired.
(2) The retirement of a biodiversity credit does not affect any requirement imposed on the owner of a biobank site under a biobanking agreement. In particular, it does not affect any requirement that the owner carry out, or continue to carry out, management actions in respect of the land in relation to which the credit was created.
(3) A biodiversity credit that has been suspended by the Director-General may not be retired during any period in which the suspension has effect.
(4) The regulations may make further provision for the retirement of biodiversity credits, including the procedure for retiring a credit and the circumstances in which the Director-General may refuse an application to retire a credit.
No. 26 Page 29, schedule 1 [6], proposed section 127ZC. Insert after line 31:
(7) A court that convicts a person of an offence under subsection (5) may, in addition to or in substitution for any pecuniary penalty for the offence, by order direct the person to retire, in accordance with this Part, biodiversity credits of a specified number and class (if applicable) within a time specified in the order and, if the person does not hold sufficient biodiversity credits to comply with the direction, to acquire the necessary biodiversity credits for the purpose of retiring them.
No. 27 Page 29, schedule 1 [6], proposed section 127ZC. Insert after line 34:
(8) In this section:
conviction includes the making of an order under section 10 of the Crimes (Sentencing Procedure) Act 1999.
No. 28 Page 30, schedule 1 [6], proposed section 127ZD, lines 26-30. Omit all words on those lines. Insert instead "1979.".
No. 29 Page 30, schedule 1 [6], proposed section 127ZE, lines 33-34. Omit "(including any development for which biobanking is compulsory)".
No. 30 Page 31, schedule 1 [6], proposed section 127ZF, lines 30-31. Omit ", unless directed by the Minister to issue the statement under section 127ZG".
No. 31 Page 32, schedule 1 [6], proposed section 127ZF, lines 6-8. Omit all words on those lines. Insert instead:
(5) The Director-General must refuse an application for the issue of a biobanking statement if:
(a) the application relates to development that is not development for which biobanking is available, or
(b) the application relates to development that requires planning concurrence under section 127ZG and the Director-General of the Department of Planning does not concur with the issue of the statement.
No. 32 Page 32, schedule 1 [6], proposed section 127ZF, lines 22-36. Omit all words on those lines. Insert instead:
(8) A refusal by the Director-General to issue a biobanking statement in respect of development does not prevent the development being evaluated or assessed in accordance with the provisions of the Environmental Planning and Assessment Act 1979 that would apply in respect of the development, but for this Part.
Note. Participation in the biobanking scheme is voluntary. If a biobanking statement is not obtained in respect of a development (including because it is refused by the Director-General) the development may still be evaluated or assessed in accordance with the relevant provisions of the Environmental Planning and Assessment Act 1979. These provisions may require (among other things) the preparation of a species impact statement and the concurrence of, or consultation with, the Minister for the Environment and the Director-General.
(9) A consent authority or determining authority cannot refuse to consent to or approve a development or activity under Part 4 or 5 of the Environmental Planning and Assessment Act 1979 on the ground that an application for a biobanking statement in respect of the development or activity was refused.
No. 33 Page 33, schedule 1 [6], proposed section 127ZG, lines 1-25. Omit all words on those lines. Insert instead:
127ZG Concurrence of Director-General of Department of Planning required in certain cases
(1) If the Director-General is of the opinion that a proposed development requires planning concurrence, the Director-General must not issue a biobanking statement in relation to the development unless:
(a) the Director-General has given the Director-General of the Department of Planning notice of the proposal to issue the biobanking statement, and
(b) the Director-General of the Department of Planning concurs with the issue of the biobanking statement.
(2) For the purposes of this section, development requires planning concurrence if the development is of a kind declared by a State environmental planning policy made under the Environmental Planning and Assessment Act 1979 to be development requiring planning concurrence.
(3) The Director-General of the Department of Planning may concur, or refuse to concur, with the issue of a biobanking statement by the Director-General of the Department of Environment and Conservation.
(4) The Director-General of the Department of Planning may refuse to concur with the issue of a biobanking statement on any grounds specified in a State environmental planning policy made under the Environmental Planning and Assessment Act 1979.
(5) If the Director-General of the Department of Planning fails to notify the Director-General of the Department of Environment and Conservation whether the Director-General concurs, or refuses to concur, with the issue of a biobanking statement by the end of the relevant consultation period, the Director-General of the Department of Planning is taken to have concurred with the issue of the biobanking statement.
(6) For the purposes of this section, the relevant consultation period means the period of 21 days after the Director-General of the Department of Environment and Conservation gives the Director-General of the Department of Planning notice of the proposal to issue a biobanking statement or such other period as may be agreed (either generally or in a particular case) by the Director-General of the Department of Environment and Conservation and the Director-General of the Department of Planning.
(7) For the purposes of the Environmental Planning and Assessment Act 1979, the kinds of development for which planning concurrence is required under this section, and the grounds on which the Director-General of the Department of Planning may refuse to concur to the issue of a biobanking statement, are taken to be matters of State environmental planning significance.
No. 34 Page 33, schedule 1 [6], proposed section 127ZH. Insert after line 40:
(2) If the biobanking statement specifies a credit retirement condition, it must also describe any deferred retirement arrangement that applies in respect of the credit retirement condition.
No. 35 Page 34, schedule 1 [6], proposed section 127ZI, lines 36-38. Omit all words on those lines.
No. 36 Page 35, schedule 1 [6], proposed section 127ZI, line 4. Omit "(but may)".
No. 37 Page 35, schedule 1 [6], proposed section 127ZI. Insert after line 5:
(6) An applicant for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 may request the consent authority to review its determination to impose any conditions on the consent (not being an environmental contribution condition) that are additional to the conditions of a biobanking statement on the ground that the condition is inconsistent with the conditions of the biobanking statement. In particular, a review may be requested because the additional condition relates to impacts that were assessed by the Director-General, in accordance with the biobanking assessment methodology, prior to the issue of the biobanking statement.
(7) Section 82A of the Environmental Planning and Assessment Act 1979 applies in respect of any such review, with any necessary modifications, whether or not the consent authority is a council, and whether or not the determination is a determination to which that section would otherwise apply.
No. 38 Page 35, schedule 1 [6], proposed section 127ZI. Insert after line 17:
(8) In this section:
environmental contribution condition means a condition that requires an environmental contribution (within the meaning of section 127B).
No. 39 Page 36, schedule 1 [6], proposed section 127ZJ, lines 5-7. Omit all words on those lines.
No. 40 Page 36, schedule 1 [6], proposed section 127ZJ, line 21. Omit "(but may)".
No. 41 Page 36, schedule 1 [6], proposed section 127ZJ. Insert after line 22:
(8) A determining authority is to make arrangements that enable a proponent of an activity to seek a review by the determining authority of any conditions imposed on an approval that are additional to the conditions of a biobanking statement, for the purpose of ensuring that the additional conditions are consistent with the conditions of the biobanking statement. In particular, the arrangements should enable a review to be obtained in relation to any additional condition that relates to impacts that were assessed by the Director-General, in accordance with the biobanking assessment methodology, prior to the issue of the biobanking statement.
No. 42 Page 37, schedule 1 [6], proposed section 127ZK, lines 26-27. Omit "Except in the case of development for which biobanking is compulsory, participation". Insert instead "Participation".
No. 43 Page 38, schedule 1 [6], proposed section 127ZL, line 13. Omit "to the Minister".
No. 44 Page 39, schedule 1 [6], proposed section 127ZL. Insert after line 10:
(6) A court that convicts a person of an offence under subsection (4) may, in addition to or in substitution for any pecuniary penalty for the offence, by order direct the person to retire, in accordance with this Part, biodiversity credits of a specified number and class (if applicable) within a time specified in the order and, if the person does not hold sufficient biodiversity credits to comply with the direction, to acquire the necessary biodiversity credits for the purpose of retiring them.
(7) In this section:
conviction includes the making of an order under section 10 of the Crimes (Sentencing Procedure) Act 1999.
No. 45 Page 39, schedule 1 [6]. Insert after line 21:
Division 7 Arrangements for deferral of retirement of biodiversity credits
127ZN Deferred retirement arrangements
(1) If the Director-General proposes to issue a biobanking statement subject to a credit retirement condition and is satisfied that restorative actions will be taken in relation to the development that will restore or improve the biodiversity values affected by the development, the Director-General may approve an arrangement (a deferred retirement arrangement) under which:
(a) the retirement of some or all of the biodiversity credits under the credit retirement condition is deferred pending the completion of those actions, and
(b) the biodiversity credits the retirement of which is deferred pending the completion of those actions are required to be transferred to the Minister.
(2) A credit retirement condition specified in a biobanking statement has effect subject to any such deferred retirement arrangement.
(3) Subject to the powers of the Director-General under this Division, the Minister is to hold biodiversity credits transferred to the Minister under a deferred retirement arrangement pending completion of the relevant restorative actions and is not permitted to transfer, retire, or otherwise deal with, the biodiversity credits.
(4) The biobanking assessment methodology may make provision with respect to deferred retirement arrangements, including:
(a) the types of restorative actions in respect of which deferred retirement arrangements are available, and
(b) the number and class of biodiversity credits that may be transferred back to a former holder of biodiversity credits (or to any person who acquires the rights of a former holder to apply for such a transfer) on completion of those actions.
(5) An application for registration of the transfer of biodiversity credits to the Minister under a deferred retirement arrangement is to be made in the manner required by Division 4. However, it is not necessary for the Minister to be a party to a transfer or application for registration of transfer.
(6) The provisions of Division 5 relating to the cancellation and suspension of biodiversity credits, and section 127ZQ (which relates to cost recovery), apply in respect of a biodiversity credit transferred to the Minister under a deferred retirement arrangement as if a reference to the holder of the biodiversity credit were a reference to the person who was the holder of the credit immediately before it was transferred to the Minister.
127ZO Transfer or retirement of biodiversity credits held subject to deferred retirement arrangement
(1) A former holder of a biodiversity credit may, on the completion of any restorative actions the subject of a deferred retirement arrangement, apply to the Director-General for the transfer to the former holder of any biodiversity credits held by the Minister under that deferred retirement arrangement.
(2) An application under this section:
(a) is to be in a form approved by the Director-General, and
(b) is to be accompanied by the fee (if any) approved by the Director-General for applications under this section and such information as the Director-General requires.
(3) The Director-General is to determine the application in accordance with any relevant requirements of the biobanking assessment methodology.
(4) If, as a result of the application, the Director-General determines that any of the biodiversity credits held by the Minister under the deferred retirement arrangement may be transferred back to the former holder:
(a) the Director-General is to register a transfer, from the Minister to the former holder of biodiversity credits, of those biodiversity credits (without requiring an application for registration of transfer), and
(b) the Director-General may retire any remaining biodiversity credits held by the Minister under the deferred retirement arrangement.
(5) If, as a result of the application, the Director-General determines that no biodiversity credits held by the Minister under the deferred retirement arrangement should be transferred to the former holder, the Director-General may retire all biodiversity credits held by the Minister under the arrangement.
(6) The Director-General must, before retiring biodiversity credits under this section, give notice of the retirement to the former holder of the biodiversity credits.
(7) The notice is to specify the date on which the biodiversity credits will be retired, being a date that is not less than 28 days after the notice is given to the former holder.
(8) The Director-General may reject an application under this section for the transfer of biodiversity credits to a former holder of the credits if an application has already been made and determined in respect of the development concerned, or for any other reason specified in the regulations.
(9) In this section, a former holder of a biodiversity credit means:
(a) the person who held the biodiversity credit immediately before the biodiversity credit was transferred to the Minister under a deferred retirement arrangement, or
(b) a person who acquires the rights of the person referred to in paragraph (a) to apply for a transfer under this section in respect of the biodiversity credit.
127ZP Deadline for completion of restorative actions
(1) A deferred retirement arrangement may provide for a period at the end of which the deferred retirement arrangement ceases to have effect.
(2) At the end of that period, the Director-General may retire any biodiversity credits transferred to the Minister under the deferred retirement arrangement that continue to be held by the Minister.
(3) The Director-General must, before retiring biodiversity credits under this section, give notice of the retirement to the person who held those credits immediately before they were transferred to the Minister.
(4) The notice is to specify the date on which the biodiversity credits will be retired, being a date that is not less than 28 days after the notice is given to the former holder.
No. 46 Pages 46-47, schedule 1 [6], proposed section 127ZX, line 33 on page 46 to line 10 on page 47. Omit all words on those lines. Insert instead:
(4) A person who applies for the transfer to the person of a biodiversity credit held by the Minister pursuant to a deferred retirement arrangement and who is dissatisfied with a decision of the Director-General in respect of the application may appeal to the Land and Environment Court against the decision.
(5) A person cannot appeal under subsection (4) against the provisions of the biobanking assessment methodology or the reasonableness of any determination of the Director-General made in accordance with that methodology.
(6) A person who held biodiversity credits immediately before they were transferred to the Minister pursuant to a deferred retirement arrangement and who is dissatisfied with a decision of the Director-General to retire those credits (other than a decision made as a result of an application referred to in subsection (4)) may appeal to the Land and Environment Court against the decision.
(7) An appeal may be made by a person under this section no later than 3 months after being notified by the Director-General of the decision.
No. 47 Page 47, schedule 1 [6], proposed section 127ZY, lines 29-30. Omit all words on those lines. Insert instead:
(a) provide for the accreditation of persons as conservation brokers, including by specifying matters that may be taken into consideration in determining whether a person (whether or not an individual) is a fit and proper person to be accredited as a conservation broker, and
No. 48 Page 48, schedule 1 [6], proposed section 127ZZB, line 19. Omit "scheme.". Insert instead:
scheme, and
(c) make provision for the resolution of disputes arising in connection with the operation of the scheme.
No. 49 Page 48, schedule 1 [6]. Insert after line 30:
127ZZD Review of operation of biobanking scheme
(1) The Minister is to cause a review of the operation of the biobanking scheme to be carried out as soon as possible after the period of 2 years after the biobanking assessment methodology is first published in the Gazette.
(2) The Minister may:
(a) determine the terms of reference of the review, and
(b) appoint a person or persons to carry out the review.
(3) The Minister is to ensure that the public are given an opportunity to make submissions on 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 2 years.
No. 50 Page 51, schedule 2.1 [1], lines 4-36. Omit all words on those lines.
No. 51 Page 52, schedule 2.1 [2]. Insert after line 9:
(6) The Minister may approve an arrangement under which:
(a) the retirement of some or all of the biodiversity credits is deferred pending the completion of any rehabilitation or restoration action proposed to be taken on the site of the project, after the project has been substantially completed, that will restore or improve the biodiversity values affected by the project, and
(b) the biodiversity credits the retirement of which is deferred pending the completion of those actions are required to be transferred to the Minister administering the Threatened Species Conservation Act 1995.
(7) Division 7 of Part 7A of the Threatened Species Conservation Act 1995 applies in respect of any such arrangement as if it were a deferred retirement arrangement approved by the Director-General of the Department of Environment and Conservation under that Division.
No. 52 Page 52, schedule 2.1 [3], lines 21-27. Omit all words on those lines.
No. 53 Page 52, schedule 2.1 [5], lines 39-42. Omit "For some types of development it may be compulsory to obtain a biobanking statement under that Part before development consent is granted under this Part."
No. 54 Page 53, schedule 2.1 [6], line 5. Omit "(but may)".
No. 55 Page 53, schedule 2.1 [7], lines 8-22. Omit all words on those lines.
No. 56 Page 54, schedule 2.1 [11], line 39. Omit "(but may)".
No. 57 Page 55, schedule 2.1 [12], lines 7-9. Omit "For some activities, it may be compulsory to obtain a biobanking statement under that Part before the activity is carried out, or an approval is granted, under this Part."
No. 58 Page 55, schedule 2.1 [13], lines 10-31. Omit all words on those lines.
No. 59 Page 56, schedule 2.3 [3], line 24. Insert "127R," after "sections".
No. 60 Page 56, schedule 2. Insert after line 34:
2.5 Mining Act 1992 No 29
Section 381A
Insert after section 381:
381A Biobank sites
The Minister is to notify the Minister administering the Threatened Species Conservation Act 1995 of the grant of any authority, mineral claim or opal prospecting licence in relation to land that is a biobank site (within the meaning of Part 7A of that Act).
No. 61 Page 57, schedule 2.5. Insert after line 1:
[1] Section 118E Court may order offender to restore habitat and take other actions
Omit section 118E (1). Insert instead:
(1) If a court convicts a person of an offence under this Part involving damage to any critical habitat or habitat of a threatened species, an endangered population or an endangered ecological community, the court may, in addition to or in substitution for any pecuniary penalty for the offence, make either or both of the following orders:
(a) an order directing the person to take any action to mitigate the damage or to restore that critical habitat or habitat,
(b) an order directing the person to retire, in accordance with Part 7A of the Threatened Species Conservation Act 1995, biodiversity credits of a specified number and class (if applicable) within a period specified in the order and, if the person does not hold sufficient biodiversity credits to comply with the direction, to acquire the necessary biodiversity credits for the purpose of retiring them.
[2] Section 118E (5)
Insert after section 118E (4):
(5) In this section:
biodiversity credit has the same meaning as it has in Part 7A of the Threatened Species Conservation Act 1995.
No. 62 Page 58, schedule 2. Insert after line 5:
2.6 Petroleum (Onshore) Act 1991 No 84
Section 9 Grant of petroleum titles
Insert after section 9 (5):
(6) The Minister is to notify the Minister administering the Threatened Species Conservation Act 1995 of the grant of any petroleum title in relation to land that is a biobank site (within the meaning of Part 7A of that Act).
For the benefit of members just arriving—and I am anxious that the honourable member for Coffs Harbour is aware of this—the House has agreed that the amendments, which have been moved in globo, will be explained in groups so that the presentation of the Government's proposals is much more coherent. The first group of amendments, which are Government amendments Nos 1, 2, 4, 28, 29, 30, 35, 39, 42, 50, 52, 53, 55, 57 and 58, deals with the issue of compulsion. These amendments all deal with removing the ability of the Minister for Planning to make the biobanking scheme compulsory.
The Government intends to implement the biobanking scheme for a two-year trial period. A ministerial reference group will be established to assist in finalising the biobanking assessment methodology and regulation. The question of whether the scheme may be compulsory in the future will be examined in a formal statutory review, which will be conducted by the reference group I have referred to. The existing provisions in the bill enabling the scheme to be made compulsory and mandating the issue of a biobanking statement in relation to certain projects are no longer required.
The second group of amendments refers to temporary developments. Government amendments Nos 3, 7, 34, 45, 46 and 51 will provide a mechanism to enable biodiversity credits to be used as a security for major development activities instead of cash or bonds. Where impacts to biodiversity values will be of a temporary nature—for example, where rehabilitation is proposed following the carrying out of a development such as mining—these amendments will provide for credits to be used as a surety instead of cash bonds to be held by the Minister until the site has been rehabilitated.
Under these amendments, the retirement of credits for the development is deferred until rehabilitation is complete. Credits then would be released back to the proponent by the Minister for the Environment in line with the improvement to biodiversity values generated by the rehabilitation and then could be sold by the proponent to a third party. This gives the proponent an added incentive to restore the site. The original biobank site at which the biodiversity credits were originally created would continue to be managed for conservation in perpetuity. The next group of amendments refers to consultation and consent in setting up and varying a biobanking agreement. Government amendments Nos 5, 6, 11, 12, 13, 14 and 15 will ensure that all necessary consultation occurs prior to the establishment or variation of a biobanking agreement.
The next amendment relates to the "improve or maintain" principle, which is a crucial foundation of the scheme. Government amendment No. 8 inserts principles to guide the operation of the so-called "improve or maintain" test. One of the most important purposes of the biobanking scheme is to improve or maintain biodiversity values. The "improve or maintain" test will be set out in the biobanking assessment methodology, which will become part of the fundamental legal framework of the scheme. The "improve or maintain" test is a tough one. For example, it will not allow the clearing of viable patches of endangered ecological communities. That point cannot be too often emphasised. It was systematically denied and ignored by several speakers in debate on the bill last night. The "improve or maintain" test will not allow the clearing of viable patches of endangered ecological communities. For other areas where credits can be used to offset impacts, the methodology will ensure that credits are traded on a "like-for-like or better" basis. There will be extensive consultation as the methodology is developed. I intend to involve important interest groups through the ministerial reference group in this process.
The next amendments concern the content of the biobanking assessment methodology and arrangements for publication, amendment and review. Government amendments Nos 9 and 10 are largely technical in nature and are being moved to resequence existing provisions. The next group of amendments relates to the "fit and proper person" test. Government amendments Nos 11 and 47 allow for a "fit and proper person" test to be included in the regulations for accrediting conservation brokers and for landowners signing up to a biobanking agreement. The test is intended to exclude persons who are unsuited to the long-term responsibilities of those roles. Such a test is already used for environment protection licences under the Protection of the Environment Operations Act 1997. The rules will be provided in the regulations and will apply to both individuals and corporations.
Government amendment No. 16 concerns the need to ensure that agreements are registered on title. This amendment clarifies that biobanking agreements will be registered on title by the Registrar-General. The next group of amendments relates to court orders to retire credits. Government amendments Nos 17, 26, 27, 43, 44 and 61 enable the Land and Environment Court to make orders requiring purchase and retirement of biodiversity credits if a biobank agreement is breached and for other threatened species offences. These sensible amendments extend the same ability already provided to the Minister for the Environment to enable the Land and Environment Court to order credits to be retired. This provision will equip the court to make orders that will directly achieve a practical rectification of impacts where threatened species laws have been broken.
The next group of amendments relates to proposals by public authorities within biobank sites, including the variation and termination of agreements. Government amendments Nos 18 and 19 are machinery amendments that simplify and clarify the existing text of the bill relating to proposals by public authorities over biobank sites. The next group, Government amendments Nos 20, 59, 60 and 62, relates to mining on biobank sites. These amendments will ensure that the Mining Act 1992 will apply to biobank sites in the same way it applies to any other land in New South Wales. These amendments will provide a mechanism to substitute new credits in the rare event that approved mining activities will impact on an existing biobank site that has already been used to offset another development. Once mining has been approved, the Minister for the Environment will issue a direction for an equivalent number and class of credits to be purchased and retired by the mining proponent to redress the loss of the biobank site and ensure that the "improve or maintain" outcome is retained. This will ensure that biodiversity offsets provided under the scheme are permanent and that any biodiversity loss caused by mining is fully offset.
The next group of amendments concerns clarification of obligations on a biobank site owner on the transfer of credits and in regard to the retirement of credits. Government amendments Nos 21 and 25 clarify that the transfer or retirement of a biodiversity credit does not affect any requirement imposed on the owner of a biobank site under a biobanking agreement. This ensures that once the biodiversity credits have been sold or retired, the owner of the biobank site continues to be responsible for carrying out or continuing to carry out the management actions necessary to improve biodiversity values at the site.
Government amendments Nos 22, 23 and 24 concern cancellation of credits. The amendments clarify procedures for the cancellation of biodiversity credits and varying or terminating biobanking agreements where mining activities impact on the biobank site and the obligations under the biobanking agreement. These amendments also include additional provisions to notify the biobank site owner and make public variations or terminations of the biobanking agreement if made without the consent of the owner. Amendments Nos 31 and 33 relate to concurrence of the Department of Planning. The amendments require the Department of Environment and Conservation to obtain the concurrence of the Director General of the Department of Planning prior to issuing a biobanking statement for development of a kind declared by a State environmental planning policy to be development requiring planning concurrence. This could include major proposals in environmentally sensitive areas or proposals that are inconsistent with applicable planning instruments or strategies. This will improve consistency between the implementation of the biobanking scheme and development assessment under the planning laws.
Amendment No. 32 will ensure the refusal of a biobanking statement is not prejudicial to the assessment of the development under the planning laws. Biobanking is provided as a voluntary, alternative mechanism for developers to comply with the State's threatened species conservation laws. It provides a better way to measure threatened species losses or gains and to ensure positive actions are put in place to counterbalance unavoidable loss. This amendment will ensure that if a developer is unsuccessful in obtaining a biobanking statement, and is therefore required to revert to the traditional assessment of significance in applying for a development consent, this is in no way prejudicial to the merits-based assessment of the development under the Environmental Planning and Assessment Act 1979.
Amendments Nos 36, 37, 38, 40, 41, 54 and 56 will ensure that councils do not duplicate threatened species assessment. The amendments provide an applicant with an opportunity to seek review of the decision of a consent authority or determining authority where conditions have been imposed that relate to matters already dealt with through the biobanking statement. These amendments are necessary to provide biobanking as a real alternative to the current system, providing the necessary certainty for participants in the scheme. The amendments are intended to ensure that, where a developer obtains a biobanking statement, it will be conclusive for the purposes of considering the impacts on biodiversity required under the Environmental Planning and Assessment Act 1979.
I wish to make one point especially clear with respect to this group of amendments: they are not intended to constrain the ability of a consent authority to attach other appropriate conditions to a development consent. The amendments recognise that biodiversity, including trees and native vegetation, can be important for a variety of reasons. Planning conditions that seek to protect amenity, privacy, cultural or historical attributes, soil or rivers or minimise visual impact would not be excluded under these provisions. For example, although a biobanking statement ensures threatened species are addressed, a council may still impose a condition protecting bushland to provide open space and so create liveable and sustainable neighbourhoods. Notwithstanding the establishment of the biodiversity banking scheme councils will continue, as common sense would suggest they should, to be able to put conditions on vegetation, for instance, that have the purpose of protecting amenity or some cultural or historical attribute notwithstanding that the biodiversity of the area is not particularly flash.
Mr Andrew Fraser: But the Minister can override that.
Mr BOB DEBUS: The planning Minister's powers remain unchanged in this respect. Development contributions under the Environmental Planning and Assessment Act that relate to conservation and enhancement of the natural environment would not be affected by these amendments as there is already a method to take these contributions into account. The next group of amendments concerns time to appeal and the resolution of disputes. Amendments Nos 46 and 48 provide an extension of the appeal period from 28 days to three months where a person is not satisfied with a decision under the scheme—for example, in relation to the suspension or cancellation of biodiversity credits.
Amendment No. 49 will formalise the Government's intention to trial the scheme over its first two years of operation. During this time the legislation will be fully operational to allow for a full examination of the scheme's effectiveness. This means that during the trial biobanking statements and biobanking agreements will have full legal status provided by the bill and trading in biodiversity credits can legally occur. The amendment will require a formal public review of the operation of the scheme. The review will identify any changes that are needed to improve the operation of the scheme identified in light of experience. To assist with this process the Minister will also specify the terms of reference for the review and appoint a ministerial reference group to assist in the establishment, operation and review of the scheme. I point out that this amendment responds to a number of submissions received during the consultation process. I recognise that the Opposition intends to move an amendment to give effect to a resolution passed last night with respect to a committee of the Parliament.
Mr MICHAEL RICHARDSON (The Hills) [10.56 a.m.]: I listened to the Minister's comments with interest. One of the things that he did not say was that the way in which the bill has been presented to the House is an absolute disgrace: it has been a real dog's breakfast. To introduce a bill not as a draft exposure bill but as a fully second read bill and then to move 62 amendments—it was 61—in I think the fifth set of amendments is an indication that the Government has not done its homework and has introduced the bill prematurely. Indeed, I was given by Ted Plummer, the Minister's adviser, a copy of the changes integrated into the original bill. He said that might be useful to me. I thought it would have been useful as well. The additions are in green ink and the deletions are in red. But, unfortunately, because the changes related only to the first draft of the amendments the numbers changed and it was impossible to make head or tail of the document. Last Friday I was absolutely flabbergasted when I contacted Mr Plummer to discover that at that stage we were up to the fourth set of amendments. The fifth version involves 62 amendments. I have not gone through to compare the final version; an army of people would be needed, which of course the Opposition does not have at its disposal.
I accept that many of the Government amendments improve the very rudimentary draft of the bill as originally introduced. Many of the amendments have been suggested by stakeholder groups. The Minister sent me a letter and gave me a list of the consultation that the Government has undertaken. A massive number of consultations have taken place—unusually—but probably because the Government recognised that the bill as originally drafted was unworkable. The Government's amendments provided that where a developer obtains a biobanking statement it will be conclusive for the purposes of considering the impacts on biodiversity required under the Environmental Planning and Assessment Act.
I know there was great concern among the development industry that it would not be conclusive, and that local councils would impose additional requirements on a developer in relation to threatened species, notwithstanding the fact that the developer had obtained a biobanking statement, which would have rendered the scheme pretty much unworkable. The amendments ensure that if a developer is successful in obtaining a biobanking statement, it is in no way prejudicial to the merits-based development assessment of the application under the Environmental Planning and Assessment Act_that is, it is not a relevant consideration by the consent authority in assessing the merits of the application. If the developer does not manage to obtain a biobanking statement in relation to the development then the developer is not prejudiced in pursuing that development. One can understand that is necessary to provide a degree of certainty to the development industry.
A number of amendments were made as a result of lobbying by the mining industry. The one the Minister referred to as a machinery amendment provides that a biobanking site can be exchanged for another site when mining activities take place on that biobanking site. The amendment highlights the rather fragile and transient nature of the protection the legislation will provide for biodiversity. I know that conservationists have expressed their concern about the potential impacts of the bill on biodiversity in many parts of an area where development is likely to be carried out. After some adverse publicity in the Sydney Morning Herald relating to a particular developer, amendments were introduced to provide that the power to create a fit and proper person test be included in the regulation-making powers. We welcome the inclusion of a fit and proper person test in the legislation. The amendments make it clear in proposed section 127ZG that a biobanking statement can be issued only if the project improves or maintains biodiversity values by removing a provision relating to part 3A projects that allow a biobanking statement to be issued, even if the test is not met.
Part 3A of the Environmental Planning and Assessment Act relates to critical major infrastructure. There was concern that the Minister for Planning would simply override all environmental considerations in this area. However, the Minister has explained that the provisions are necessary given the option for the Minister for Planning to approve a part 3A project subject to acquiring and retiring biodiversity credits, or complying with a biodiversity statement. We support that amendment. Another amendment relates to improving or maintaining biodiversity values to incorporate principles in the legislation to guide the Minister for the Environment in approving the biobanking assessment methodology, and states that biodiversity values must be conserved across appropriate geographic scales_that is, the relative importance of a site being assessed must be evaluated against regional and local conservation status and priorities. All types of ecological communities must be adequately conserved_that is, the relative scarcity of ecological communities must be considered_and areas conserved must be ecologically viable in the long term. The inclusion of those guidelines at least clarifies an important part of the legislation
The amendments require the Department of Environment and Conservation to obtain the concurrence of the Director General of the Department of Planning prior to issuing biobanking statements in relation to a development that is inconsistent with current land use zoning, or that is incompatible with any applicable regional strategy. A subdivision development involves a significant number of new lots as specified in the regulation or State environmental planning policy and development that is located in coastal or other environmentally sensitive areas as specified in the regulation or State environmental planning policy. Once again, we support that amendment. However, we are less supportive of some of the other amendments and we are concerned about the amended legislation. We have dealt with the Ministerial Reference Group, which will be established to assist in finalising the biobanking assessment methodology and regulations, by the Government's acceptance of the motion I moved last night to establish a joint select committee, which would have an input into the methodology and the regulations.
We certainly believe the Parliament should be involved, given that so much of the detail of the bill will be in the accompanying regulations. In fact, the regulations will probably be significant longer than the legislation. The Government's intention to trial the biobanking scheme for two years, which will encompass the whole State and which was supposed to have been explicit in the bill, is a bit of a Clayton's trial. I put it to the Minister that if the scheme does not work, if hundreds of biobanking credits have been written across the State, how will he unscramble it? How will he pay back those who have paid good money for biobanking credits and those who have established biobanking sites? It seems to me that it will not be a trial at all, even though the Minister's adviser, Ted Plummer, told me, "If it does not work we will scrap the scheme." I do not understand how he could scrap the scheme.
When the legislation goes through it will apply across the State. Almost inevitably there will be some fine-tuning down the track because this is pioneering legislation. Nothing quite like it has been introduced elsewhere in the world. It is inevitable that there will be changes to the scheme. But if the scheme proves to be impractical and unworkable how will the Government stop what it has put in train? I would be interested to hear the Minister address that question in his reply. We believe the bill continues to place a disproportionate emphasis on home buyers to fund biodiversity conservation. Obviously, the protection given to biodiversity sites is far less than that given to parks and reserves. There has been some talk of this protection lasting in perpetuity, but I understand a biobanking agreement may last for only 20 to 25 years.
When the money that has been put into maintaining and improving the site runs out, who would look after it? Presumably it ceases to be a biodiversity site because it is of no value in improving biodiversity. The legislation also disadvantages those who have already entered into a voluntary conservation agreement with the Government. They get nothing for their land. They have done the right thing. They have put aside a parcel of land for conservation purposes, but, unlike the people who now will be able to enter into a biobanking agreement, they will get nothing for their land. Most importantly, the bill does not specify the methodology for drawing up a biobanking statement or determining how many biodiversity credits can be created on a particular site. Those things will be specified by the regulations, and the devil could well and truly be in the detail. We simply do not know how many credits will be applicable to a particular type of ecological community.
This scheme will apply across the State. I understand that there may be trading between regions, not just within a region or within an area, and that fills me with apprehension. I do not see how the value of a threatened ecological community on the North Coast, for example, can be compared with one near Albury. I know that is an issue that the environment movement feels strongly about. The Environment Liaison Office wrote to me and stated its continuing concerns in relation to the bill. Those concerns are that high conservation value areas are not defined as being off limits to development. The instant loss of biodiversity will be traded for slow gain because the scheme relies on increases in biodiversity value that may take 75 years or more to materialise. In the context of biodiversity sites not being maintained in perpetuity, the import of the objection is understandable. Trees usually do not reach maturity within 20 or 25 years.
Mr Andrew Fraser: Eighty years.
Mr MICHAEL RICHARDSON: As the honourable member for Coffs Harbour said, many native species take 80 years to reach maturity. A scheme that simply provides money to maintain or improve a biodiversity site for 20 to 25 years is simply inadequate as far as biodiversity is concerned. The Environment Liaison Office also states that there is no guaranteed permanent protection of offset sites and that they could later be offset themselves or approved for development by a public authority. The office points out that biodiversity values that are not like for like can be traded under the scheme and that the science behind the scheme is very limited and as yet is untested. The same type of criticism could be levelled at the zoning of two new marine parks that the Government has created. The office also points out that the most damaging developments are being assessed under part 3A and are exempt from biobanking.
Mr Bob Debus: The honourable member for Bligh read all that out last night.
Mr MICHAEL RICHARDSON: That is good. The office also points out that the scheme does not ensure that biobanking offsets will be used only as a last resort, after all efforts to avoid and minimise impacts have been made. Perhaps equally pertinent to the environment movement's concerns relating to the legislation is the concern of the New South Wales Farmers Association. New section 127ZD (a) specifically excludes farming from the application of provisions of this bill. I foreshadow an amendment that will be moved by the Opposition in the other place to delete new section 127ZD (a).
The Opposition believes there is a real opportunity here for the Government to provide a way through the impasse that has been reached with farmers over the past few years in relation to native vegetation. By acceptance of amendments to regulations regarding native vegetation, a real opportunity may be created to provide benefits to farmers and to the environment. The President of the New South Wales Farmers Association, Mr Jock Laurie, has stated that the bill creates a situation whereby one sector of industry is given an unfair advantage over another because a property developer may purchase offsets to enable his business plans whereas a farmer cannot. He also made the point that biobanking credits may be used to meet development approval requirements under the Environmental Planning and Assessment Act 1979 but cannot be used to meet requirements under the Native Vegetation Act.
The way that farmers feel about this legislation is understandable. Currently, farmers feel as though they are under siege from all sides. Of course, they are also suffering under the drought that affects all areas throughout New South Wales. Farmers perceive this bill as just another example of the Government's lack of concern for the rural sector—for people who live in country areas and who are the backbone of our State. Government amendment No. 9 proposes to amend section 127B that relates to biobanking assessment methodology and lays down some general principles for establishing the methodology. The amendment illustrates two major weaknesses of the bill. It does not necessarily conserve particular ecological communities, nor is there any guarantee that biobanking sites will be conserved in the long term. That is a matter of real concern to members of the Opposition.
The other point that struck me about the Government's amendments was that so much of the devil will be in the detail of the regulations, notwithstanding that the Government seems to have gone into enormously specific details about issues that one would think could be taken for granted. Government amendment No. 25 states in relation to new section 127ZC (1):
The Director-General retires a biodiversity credit by making a recording in the entry relating to the credit in the register of biodiversity credits to indicate that the credit has been retired.
I am sure the honourable member for Coffs Harbour is right up to speed on that issue and understands what the amendment means. The point is self-evident. If a credit is retired, an entry will have to be made somewhere, and if there is a register of biodiversity credits, that is where the entry will be made. I am surprised that the amendment does not specify what type of pen should be used to make the entry. Surely it is not necessary to spell out procedures in that type of detail. Surely a bit of commonsense will prevail. I should also point out that there is section after section of similar ilk. [Time expired.]
Mr ALEX McTAGGART (Pittwater) [11.16 a.m.]: The purpose of this debate is to address issues related to amendments that have been moved by the Government. I acknowledge that last night and today the Minister for the Environment has spent considerable time listening to the debate. I reiterate the position I take. I believe that the intention of this bill fails unless rural land is separated from metropolitan land. It is imperative for us to do an audit of areas of high conservation value in the metropolitan area so that the areas can be protected. Knowing what we have is an essential precursor to knowing what provisions should be formulated. As I understand it, the intention of this bill is to determine and protect the high conservation value in land.
Last night I mentioned, and I reiterate the point now, that we should take advantage of the introduction of the new local environmental plan [LEP] template that is being introduced by the Minister for Planning because it represents an opportunity for metropolitan areas to have a light LEP and to identify areas of high conservation within that. I urge the Minister to separate metropolitan land from rural land. It is incongruous to have high value coastal pockets of land traded for large areas of degraded land in the west. It is incongruous to swap chalk for cheese or apples for oranges and to contend that one ought to be compensated by the other. I cannot emphasise strongly enough the importance of separating metropolitan land from rural land so that conservation areas of a consistent standard may be created.
Mr ANDREW FRASER (Coffs Harbour) [11.18 a.m.]: I endorse the comments made by the honourable member for The Hills. It is a disgrace that legislation that is rushed into the Parliament has resulted in 62 amendments being moved by the Government. If the Government is serious about this legislation, as it should be, it should withdraw the legislation, recompose it and reintroduce it. Three weeks of sittings still remain. Let us look at the bill in a form that we understand. Trying to transpose the amendments into the bill, as the honourable member for The Hills said, is almost impossible because they are changing as we proceed: this is a movable feast, and the Minister said as much. We need to deal with the amendments in a way that is much more coherent for the House and for Hansard. I fully support, in principle, biobanking and offsets. What worries me is that the farming and forestry communities, those in primary industries, have been left out of this debate. The honourable member for The Hills referred to the concerns of the New South Wales Farmers Association and the changes to section 127ZD (a), which the Opposition will seek to amend in the upper House.
As I stated in my contribution to the second reading debate, that amendment will be moved because why should there be one rule for metropolitan areas and developers and another rule for farmers? Farmers are trying to manage their properties in fairly harsh conditions—and have managed in a very good way—to the extent that the Government has attempted to introduce private native forestry regulations that will, in effect, lock up private land that has been logged for years. There is a real dichotomy between what the Government is trying to do with this bill in relation to development in, I suggest, Newcastle, Sydney and Wollongong, and what it is doing to farming and primary industries in regional New South Wales. I have real concerns with some of the amendments. Unfortunately, the Opposition was provided with the amendments at very short notice. Subsection (9) of proposed section 127B states:
In this section, environmental contribution means any of the following contributions, or a part of such a contribution, if the contribution or part is required, or is to be used or applied, for the conservation or enhancement of the natural environment:
As the honourable member for The Hills said, that wording is somewhat confusing. I believe it is an attempt to disguise what the Government is trying to get away with. Paragraph (a) of that subsection states:
a contribution (including a dedication of land or other material benefit) required by a planning agreement …
To me "other material benefit" means a cash payment by a developer to, I guess, an environmental trust. In the farming community when farmers were clearing woody weeds, police arrived at their door with threats of fines of $200,000. On top of that, when a conviction is made—and normally successfully overturned in the Land and Environment Court—a fine of $200,000 or more is imposed and the farmer has to set aside huge areas. With 10 hectares damaged, 200 hectares are to be set aside and maintained by the private property owner, the farmer. Yet, a clear signal has been sent to developers to provide cash and they will be allowed to destroy habitat and native vegetation. That is not the way we should proceed.
I turn now to the plantation pine industry, especially that in the electorate of Monaro. Currently there is a huge conflict in that area between farming communities and the pine industry. Why? Because the farming community claims, rightly in some cases, that land prices have been forced up because the pine industry is finding it very hard to get offsets. They will not buy blocks of land at higher altitudes, which are more suited to pine production: they buy cleared farming land. When they try to grow their plantations and buy a block of land they find that no offsets are available; biobanking is not available to farm forestry companies. Why does this bill not apply to farm forestry? Why are we not giving an opportunity for an industry that employs hundreds of people in very meagre circumstances in areas under drought—yet pine will grow over a period of 25 years and can be harvested—to have offsets or biobanking, as the bill states?
Why are we not saying to them that they can clear land on the basis of replanting with pine and purchasing neighbouring land and conserving it? The downstream effect of this bill is that viable farming land that has been cleared is now utilised for pine plantation. The pine plantation companies say that that is not always the best land. Those river flats are not necessarily the land where pine thrives; pine likes higher rainfall and less wet feet. If the Government were serious, it should look at primary industries in an holistic fashion and include the farmers. I support the needs of the New South Wales Farmers Association. The Opposition will move an amendment to delete that proposed subsection. The Minister needs to talk with the farmers in the same way that he has talked with the developers. What if the biocredits fail in the future? In this two-year scheme, how many times could those biocredits be sold on to someone else? What happens if, as provided in the bill, that in the opinion of the Minister—and there is a hell of a lot of "in the opinion of the Minister" in the bill—
Mr Bob Debus: I should think so.
Mr ANDREW FRASER: What happens if you, Minister, decide to cancel credits that have been traded for a third time? Who loses? Does the loss go back to the original person? No, it does not: it is stuck with the person who bought the credits in good faith.
Mr Bob Debus: If I did it unjustly there would be a remedy at court.
Mr ANDREW FRASER: A remedy at court, which means that the Minister will send someone who has acted in good faith into the Land and Environment Court, at huge cost to him, and to the Government for that matter, to resolve an issue. However, if the bill and the amendments were put together in a co-operative way—as the honourable member for The Hills said, if the bill had been released as a draft—and circulated to people for input, rather than being introduced and having 62 amendments proposed, the reality would have been different. The Minister can look back and belt his brow, but for him to move 62 amendments to his own bill is bizarre.
Mr Bob Debus: It is reasonable for you to ask for consultation, but you do not appear to be aware that this bill was put out for consultation last June and has gone through the longest consultation of any bill I have ever introduced.
Mr ANDREW FRASER: If it has gone through that long consultation, why has the Minister moved 62 amendments? Why were those amendments not incorporated into the bill before it was introduced in the House? The provision for regional transfers absolutely scares me. The cost of land in relative terms in regional areas is very cheap. There could be massive development in Sydney, Newcastle and Wollongong and then a developer could purchase land at the back of Bourke, or somewhere else, which is comparatively cheap. There would then be a regional transfer. People on the coast are fearful because the coastal committee that was formed, under great stewardship at the time, looked at keeping the green fringe on the coast. If we allow this to apply to the coast, will we end up with a situation where developers' dollars allow for that green fringe to be cleared on the basis of an offset in Bourke or another area?
The Opposition wants to see sensible development, not a bill that is developer driven. However, at the same time we want an opportunity for more land to be made available to young families to build homes; we do not want to stop progress. If the Government had a decent regional development policy it would find less need to push this bill through at such a rate of knots. Why is the Government not encouraging families to build west of the sandstone curtain? We could talk about payroll tax concessions and all the rest, which have not been recognised, but in a pure environmental sense the Government is tipping the scales in favour of overdevelopment in the major metropolitan areas which, as I said in my contribution to the second reading debate, do not have transport, roads, water or the infrastructure that they need. Is the Government going to push that on to the developers? Will that be a trade-off? A cash credit is available under amendment No. 9. That is what I understand the amendment to mean. Paragraph (b) of subsection (9) refers to:
a contribution (including a dedication of land or levy) …
That is a thinly disguised pay-off. As I said before, I support fully the principles of biobanking and offsets but they must be applied fairly and equitably. The process must be open. The Government should not introduce legislation, move 62 amendments to it and then expect the Opposition, or indeed Parliament as a whole, to accept them. I have not had time to go through the amendments line, chapter and verse. It is somewhat amazing that the Minister and his department have released a document that explains the amendments not in seriatim but globally. It simply states, "This is what we intend to do." That is not the best way to proceed.
The document to which I refer is entitled "Refinements to the development and implementation of the biodiversity banking bill after stakeholder consultation". If the Government consulted stakeholders before it introduced the bill why has it produced an eight-page document in an attempt to convince the Opposition that this is the right way to proceed? I support the principle of the bill but I cannot support the bill in its present form. I certainly cannot support regional transfers. I would like to hear what the Minister has to say about the cash injection, because I see the bill as a cash injection rather than as a sensible biobanking process.
Mr MICHAEL RICHARDSON (The Hills) [11.31 a.m.]: I have some remarks to make consequent upon the contribution of the honourable member for Coffs Harbour. He expressed some concerns about the likely impact of the legislation on coastal development. He represents a coastal electorate and he could genuinely expect some major changes to his area as a result of the passage of this bill. Despite the "maintain and improve" test, it is incumbent on the Minister to reassure the honourable member for Coffs Harbour and other members who represent coastal electorates, such as the honourable member for Ballina, that the bill will not affect adversely the amenity of their constituents. I said earlier that many of the Government's amendments were either superfluous or extremely convoluted. I draw the attention of the Committee to amendment No. 41, which states:
Insert after line 22:
(8) A determining authority is to make arrangements that enable a proponent of an activity to seek a review by the determining authority of any conditions imposed on an approval that are additional to the conditions of a biobanking statement, for the purpose of ensuring that the additional conditions are consistent with the conditions of the biobanking statement. In particular, the arrangements should enable a review to be obtained in relation to any additional condition that relates to impacts that were assessed by the Director-General, in accordance with the biobanking assessment methodology, prior to the issue of the biobanking statement.
I am glad that that has been clarified! Sir Humphrey Appleby could not have put it any better. I will repeat the text of the amendment for the benefit of the Committee because I am sure that some honourable members have not come to grips with its nuances. Amendment No. 41 states:
(8) A determining authority is to make arrangements that enable a proponent of an activity to seek a review by the determining authority of any conditions imposed on an approval that are additional to the conditions of a biobanking statement, for the purpose of ensuring that the additional conditions are consistent with the conditions of the biobanking statement. In particular, the arrangements should enable a review to be obtained in relation to any additional condition that relates to impacts that were assessed by the Director-General, in accordance with the biobanking assessment methodology, prior to the issue of the biobanking statement.
I think the Committee will understand why the honourable member for Coffs Harbour expressed concern that the briefing we received was not on an amendment-by-amendment basis. I defy any member of this House to understand what amendment No. 41 means without the benefit of some guidance from the bureaucrats. I defy any member in this place, including the lawyers, to explain exactly what it means. It is not surprising that the Opposition is expressing concern about the legislation, even as amended, because in many respects the amendments do not make sense. Amendment No. 49 provides for a review of the operation of the biobanking scheme. Proposed new section 127ZZD states:
The Minister is to cause a review of the operation of the biobanking scheme to be carried out as soon as possible after the period of 2 years after the biobanking assessment methodology is first published in the Gazette … The Minister may … determine the terms of reference of the review, and … appoint a person or persons to carry out the review ... The Minister is to ensure that the public are given an opportunity to make submissions on the review … 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 2 years.
I assume that the parliamentary committee will be involved in this process. That would be beneficial because Parliament should play a lead role in ensuring that the scheme is rolled out appropriately across the State. However, the Opposition would prefer that the scheme not be rolled out in this way at all. We would prefer that there be a genuine trial in only one area. We think that is the only way to get around the problem that I mentioned earlier. If the scheme does not work, how do we unscramble it? How do we pay back all the money that has been put into the fund? How do we undo all the biobanking sites and biobanking credits?
By restricting the trial to one area, which we believe should be the lower Hunter, we will get around that problem. We will make sure that the scheme works, that it is robust and that it will achieve its stated objectives of enhancing biodiversity as well as facilitating development. If that can be done the bill will receive the wholehearted support of the Opposition, and I suspect of every member of the House. I foreshadow that we will move a second amendment to that effect in the upper House. The Opposition believes there should be a restricted trial rather than a simple review of the scheme's operation on a statewide basis. We do not think the latter is a trial at all. Because of those concerns it will be difficult for the Opposition to support the bill as it stands.
Mr BOB DEBUS (Blue Mountains—Attorney General, Minister for the Environment, and Minister for the Arts) [11.38 a.m.]: I thank honourable members for their contributions to the consideration of the amendments in Committee. I have some general comments. First, although the honourable member for Coffs Harbour expressed some sympathy for the general notion of biobanking, he criticised the Government's lack of consultation and what he thought was the precipitate introduction of the bill into Parliament. I refer honourable members to the description that I gave of the length and depth of the consultation on the bill, which began last June, that took place with everybody who had an interest in it. In my speech in reply to the second reading debate I think I detailed adequately the quite exceptional level of consultation that has occurred. That is exactly why there are so many amendments to the bill. We would have had far fewer amendments if we had been less concerned about talking to every interest group involved in the consultation process.
I made a systematic response to the concerns of the environment movement which were raised in Committee and were also read out by the honourable member for Bligh in the second reading debate last night. The issues raised by the honourable member for Coffs Harbour, and to a degree by the honourable member for The Hills, concerning the Farmers Association and its desires were also dealt with at great length by me in my speech in reply last night. I do not believe I would particularly assist the understanding of the House by repeating those explanations. On about 26 September I wrote to the Farmers Association, and I am happy to make that letter available to honourable members should they wish better to understand the position taken by the Government towards farmers.
It is not possible to have a biobanking arrangement, an offsetting arrangement, that is identical in metropolitan areas, in developed areas on the coast and in the bush as the differences in scale, land values and development potential are just too far apart. However, as I explained in the letter of 26 September and in the debate last night, the Government is more than anxious to seek ways in which it can better harmonise the arrangements that are being introduced for biobanking, essentially in metropolitan and developed areas, and arrangements that exist under the native vegetation legislation affecting areas that are not covered by the Environmental Planning and Assessment Act.
I refer to the question asked by the honourable member for The Hills about what would happen if the trial had to be unscrambled. As I have said on many occasions during the debate, the Government intends to trial the scheme, which it is confident will work, for two years. The scheme works in several parts of the United States of America, including Florida and California. The Government is committed to continuing to work with all those who are called stakeholders these days to ensure that the biobanking scheme operates both effectively and efficiently. In order for a trial to take place, the legislation is required to provide an appropriate legal framework. That means that biobanking statements and agreements will have legal status conferred by the bill. In other words, credits purchased during the trial will, whatever happens, exist beyond the length of the trial. Fundamentally, a trial is a trial, and if biobanking is altered significantly at the end of it, the Government will be obliged to act to ensure that the rights and responsibilities of landholders remain protected.
The honourable member for The Hills raised mining. The Mining Act 1992 will continue to apply as it presently does. It is a powerful Act in terms of securing its objectives and it will not be weakened. In appropriate circumstances the Mining Act can overcome the provisions of any other Act, with the exception of the national parks legislation, that concerns itself with land management. So far as these provisions are affected by the Mining Act they contain nothing that suggests in any way that the biobanking scheme is fragile. Mining interests can be granted over biobank sites. Nothing in the bill expressly prohibits mining on a biobank site. The Mining Act will apply to biobank sites in the same way as it applies to other land in the State. That means that the Minister for Primary Industries, where he is permitted to do so, can grant exploration licences and mining leases over any land, including a biobank site, although in some circumstances the consent of the biobank site owner may be required. Authority to mine, however, also requires planning approval where potential environmental impacts are considered.
The bill already provides that the Minister must consult with the Minister for Primary Industries before entering into each biobank agreement. That will ensure that any implications of mineral extraction are considered before establishing land as a biobank site. That is the first insurance as it were. In addition, the bill requires that owners, lessees and mortgagee of land consent to a biobanking agreement. The proposed amendments will also provide a mechanism, as I have described, to substitute new credits where approved mining activities will impact on an existing biobank site. The requirement to provide alternative actions is consistent with similar arrangements that apply now to public authorities. The amendments will ensure that biobank site owners are afforded the same protection and status as all other private landowners whose land may be affected by mining. They will also ensure that any biodiversity losses that are caused by mining are fully offset. That is to say, the provisions concerning mining demonstrate not that the biobanking scheme is fragile, but that it is well thought out and effective.
Several members of the Opposition, including the honourable member for The Hills and the honourable member for Coffs Harbour, raised trading between regions under the biodiversity scheme. Trading between regions will be specifically considered by the Ministerial Reference Group. The aim is to ensure that trading rules are practical and that they do not allow inappropriate trading. For example, it will not be possible to trade between far-flung parts of the State; it will not be possible to trade between different ecosystems. So it will not be possible under the rules, for example, for somebody in Coffs Harbour to buy credits in Albury. It will not be possible for someone who is dealing with a coastal ecosystem to buy credits out in the arid desert. The issues generally raised by the honourable member for The Hills and the honourable member for Coffs Harbour are legitimate, but they are also questions that are well and truly anticipated in this scheme.
I point out, for example, that the Department of Environment and Conservation has significant experience in designing market rules that deal exactly with these kinds of problems. In essence, the trading rules will work in this way. The trading rules will be applied through the "improve or maintain" test. In the debate I have often emphasised the crucial role of the "improve or maintain" test in securing positive outcomes for biodiversity. The "improve or maintain" test will be incorporated into the assessment methodology. Although those methodologies are complex to talk about, the fact is again that the Department of Environment and Conservation and other parts of government now have good experience in working out these kind of methodologies—for example, with respect to the Native Vegetation Act. The "improve or maintain" test, incorporated into the assessment methodology, will be part of the legislative framework for the scheme.
As I have already indicated, the clearing of viable patches of endangered ecological communities will not be permitted under the "improve or maintain" test. Again, that is the essential answer to the concerns of people such as the honourable member for Pittwater. The clearing of viable patches of endangered ecologically species will not be permitted because of the "improve or maintain" test, but for other areas where credits can be used to offset impacts there will be strict rules applying to ensure, first, that credits are obtained from a biobank site with either the same ecological community as the development site or a more endangered ecological community.
That partly answers the concerns raised by the honourable member for Coffs Harbour. The credits are obtained from a biobank site with the same threatened species habitat as the development site, so that also answers the concerns of the honourable member for Coffs Harbour. Credits are obtained from the same geographical subregion, based on catchment management authority boundaries, or other subregions with similar habitats. I can only repeat that this question about trading between regions will be adequately constrained by the kinds of trading rules that I am here describing. These rules are to be further developed, but I have given their outline, intent and purport. I hope that the Committee, like me, is persuaded that this approach is satisfactory. I commend the amendments.
Mr ANDREW FRASER (Coffs Harbour) [11.50 a.m.]: I listened carefully to what the Minister had to say. However, we need more fleshing out. The Minister said it would be inappropriate to have different and far-flung ecosystems. I accept that. It will be coastal. I note also that the Minister said that geographical subregions will be based on catchment management authority boundaries. He needs to understand that the catchment management authority area on the North Coast runs basically from south of Port Macquarie to Tweed Heads and inland as far as Glen Innes. I think there will be a problem where a Tweed developer may seek biobanking credits in respect of an area on the fringe of a coastal settlement, say the back of Port Macquarie inland, that would be far cheaper. Whilst the credits are similar, I would suggest the ecosystems would be vastly different. So coast-to-inland is out, but coast-to-coast is not out.
One matter that I meant to raise in the second reading debate is the meaning of the term "viable patches". What is a viable patch? I have seen development, for example in North Boambee Valley, where the Department of Environment and Conservation has basically said to developers that they must leave camphor laurel trees, an introduced species, as koala shelter trees. The sensible thing would be to leave them there in the short term while growing a couple of native species that koalas may use. The Minister may laugh, but it is fact that camphor laurel trees, which koalas do not climb and do not feed on, have been left on instructions from his department as koala shelter trees.
The Minister is now talking about viable patches. What is a viable patch? Is it five acres, two acres or half an acre? We do not know. But that is the sort of area being isolated and singled out for the reservation, preservation, or whatever you want to call it, of camphor laurel trees for koala shelter trees. We need more than the Minister's assurance that an area is or is not viable. He may say, if the cash donation to the environment trust is large enough, that 200 or 300 acres is an unviable area. On the other hand, we regularly hear that some North Coast areas of 30-year-old regrowth the subject of development applications have rare and endangered ecological communities, when the area might be as small as 10 or 15 acres. We need a definition that is a little stronger than "viable patch." Further, are these rules to be in the regulations? The Minister spoke earlier about the inappropriateness of far-flung ecosystems. Is that spelt out in the legislation? Will that be done by way of amendment or will it be addressed by way of regulation? We need to know that. The people who are raising questions about this legislation are asking that sort of question.
Mr BOB DEBUS (Blue Mountains—Attorney General, Minister for the Environment, and Minister for the Arts) [11.54 a.m.]: I will have one go at that and hope we will then be able to move on to other matters. It is important to understand that the legislation will ensure that the rules incorporate the criteria I mentioned. The details of the rules, of course, would be in the regulations. It cannot be otherwise; it would not make any sense if it were otherwise. But the principles that the trading rules reflect, I repeat, are that credits are obtained from a biobank site within either the same ecological community as the development site or one that is more endangered, credits are obtained from a biobank site with the same threatened species habitat as the development site, and credits are obtained from the same geographical subregion or other subregion with similar habitats. As to the honourable member's example of koala shelter trees, I am able to give him the must unequivocal assurance that camphor laurel trees will not provide credits under our scheme.
Mr Andrew Fraser: That was an example.
Mr BOB DEBUS: It was an example, and I am able to give the honourable member that assurance. But when it comes to the question of what area is viable, again a legitimate question, I answer by referring the honourable member to the circumstance that the legislation will introduce the so-called "improve or maintain" test into the assessment methodology. So I cannot answer now from across the table what will be a viable patch, because that will depend on the circumstances of every individual location. However—and this is the very important point—under the existing native vegetation legislation a methodology for what is called the PVP, or property vegetation plan, a developer—
Mr Andrew Fraser: But it is not working.
Mr BOB DEBUS: There were initial difficulties with that methodology, but the science behind the methodology is established and proven. The honourable member will find, if he talks to the relevant peak organisations, that following some amendments made within recent months there is a fairly widespread agreement that that methodology is now working.
Mr Andrew Fraser: It is established, not proven.
Mr BOB DEBUS: It is established. The honourable member knows that there used to be quarrels and a degree of agitation about something called invasive native scrub. Those difficult technical issues around the development of the methodology for the native vegetation assessment are largely now settled. I do not say that they are settled in every fine detail, but they are now largely settled and there is widespread acceptance that they are working. It is for that reason that I have confidence that, for any spot in the honourable member's electorate, I will be able to tell him, after the appropriate scientists have made their assessment, what is and what is not a viable patch.
Amendments agreed to.
Mr MICHAEL RICHARDSON (The Hills) [11.58 a.m.]: I move the amendment standing in my name:
Page 7, schedule 1 [6], proposed section 127A. Insert after line 24:
(3) The biobanking scheme is not be implemented until:
(a) a joint committee of the Legislative Assembly and the Legislative Council has been appointed with functions that include the function of drafting guidelines for the operation of the scheme during a trial period, and
(b) the draft guidelines have been provided to the Minister, and
(c) the Minister has caused the following to be tabled in each House of Parliament:
(i) a copy of the guidelines prepared by the joint committee,
(ii) a report by the Minister setting out what the Government has done or proposes to do in response to those guidelines.
(4) Despite subsection (3), the biobanking scheme may be implemented if the guidelines referred to in subsection (3) (a) have not been prepared by the joint committee and provided to the Minister by the end of the period of 6 months after the commencement of this Part.
(5) For the purposes of subsections (3) and (4), each of the following actions constitutes implementation of the biobanking scheme:
(a) the publication of the biobanking assessment methodology in the Gazette,
(b) the establishment of any biobank site,
(c) the issue of any biobanking statement.
This amendment is consequential on the motion passed by the House last night to establish a joint select committee. I am assured by Parliamentary Counsel that this is necessary as an enabling amendment to the legislation. It provides that the biobanking scheme is not to be implemented until the joint committee has been able to conduct its preliminary work. But there is a let-out clause for the Government if the committee were to be dragging the chain, and that is, despite the fact that the scheme is not to be implemented, the biobanking scheme may be implemented if the guidelines referred to in subsection (3) (a) have not been prepared by the joint committee and provided to the Minister by the end of the period of six months after the commencement of this part.
That is a message to the committee to get its work done. We understand that Parliament is likely to be prorogued in December and it may be difficult for the committee to complete its work. I would expect that the Minister, whoever that may be after the next election, will exercise a degree of discretion and allow a reasonable period for the committee to complete its work. It is not our intention that the implementation of the trial is unduly delayed as a consequence of the committee's work. We see the committee as being integral in assisting with establishing a methodology for the trial, monitoring the trial over the next two years and reporting back to Parliament.
Mr BOB DEBUS (Blue Mountains—Attorney General, Minister for the Environment, and Minister for the Arts) [12.00 p.m.]: As I indicated last night, the Government accepts the amendment about the establishment of a parliamentary committee. I do not have any reason to comment further on the amendment.
Mr Andrew Fraser: Could you put me on the committee?
Mr BOB DEBUS: Unless the honourable member for Coffs Harbour is to be a member. I thought it had already been agreed that he would not.
Amendment agreed to.
Schedule 1 as amended agreed to.
Schedule 2 agreed to.
Bill reported from Committee with amendments and report adopted.
Third reading ordered to stand as an order of the day.