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The Environment and Communications Legislation Senate Committee yesterday reported on their Inquiry in to the Environment Protection and Biodiversity Conservation Amendment (Retaining Federal Approval Powers) Bill 2012, proposed by Senator Larissa Waters at the end of last year.

This Bill responded to an agreement in April last year at the Council of Australian Governments agreed to major reform of environmental laws across Australia, including handing over federal approval powers under the EPBC Act to the States It sought to remove the power from the EPBC Act that enables the federal government to enter approval bilateral agreements with the States.

We submitted to the Inquiry, and appeared at the public hearing in Canberra last month.

The Committee split down party lines in the report, but ultimately recommended that the Bill not be passed (that the power to make approval bilateral agreements should remain in the Act). But some interesting commentary ensued in the process. Here are some highlights.

Committee Majority (Senator Doug Cameron (ALP, NSW), Senator Catryna Bilyk (ALP, TAS) and Senator the Hon. Lisa Singh (ALP, TAS)):

  • Most submitters expressed grave concern about the risks to the environment associated with granting approval powers to the states and territories. (Para 2.1)
  • While the committee heard claims that the Commonwealth approval process was causing inefficiency, that processes between the Commonwealth and the states and territories were duplicated, and that project proponents were labouring underneath the weight of uncertainty, there was no substantive evidence presented to support these claims. (Para 2.9)
  • The committee was presented with little evidence from the states and territories. (Para 2.19)
  • The committee is concerned about the possibility of state and territory planning departments exercising decision making powers in relation to matters of national environmental significance, and notes that state and territory planning departments are responsible for assessment of major economic development and infrastructure projects, not for protecting the environment. (Para 2.24)
  • The committee is concerned that if the Commonwealth were to lose its oversight and approval power in relation to matters of national environmental significance, this may encourage competitive federalism of the kind being advocated by the Premier of Queensland whereby:

…intergovernmental relations should start with every state’s right to seek a competitive advantage over each other, using lower taxes and less regulation to attract business and secure investment. (Para 2.28)

  • During its deliberations the committee was presented with evidence to show that the EPBC Act is, in the main, working well and that there is overwhelming community support for the Commonwealth to maintain its oversight powers to ensure proper protection of the environment. (Para 2.53)
  • The committee has found that international obligations compel the Commonwealth to retain its powers for approving matters of national environmental significance in order to deliver strong national coordination and control to protect Australia’s biodiversity, to reduce habitat loss and land degradation and to protect the nation from biosecurity risks. (Para 2.53)
  • The committee rejects the claims made by business interests that Commonwealth powers of approval are the cause of inefficiencies, delays, and loss of income to project proponents. (Para 2.53)
  • The committee considers that there is confusion amongst submitters as to what is actually causing delays or uncertainties in the assessment and approval processes. On this point the committee is persuaded by evidence that it received to indicate that assessment processes at the state and territory level were in some circumstances causing delays, rather than processes at the Commonwealth level. (Para 2.54)
  • The committee would also like to caution against the assumption that any future approval bilateral agreements would solve all of the problems that are perceived to exist in the current system. In fact, the committee was presented with no empirical evidence to substantiate claims that Commonwealth involvement was hampering approval processes. (Para 2.54)
  • Furthermore, the committee notes that any costs to the proponent associated with meeting EPBC Act requirements are legitimate in the context of meeting Australia’s national and international environmental obligations. (Para 2.58)
  • The committee is persuaded by the evidence it received to indicate that Australia’s interests would be well served by establishing an independent National Environment Commission and appointing a National Environment Commissioner, as recommended by the Hawke report … On this basis the committee believes the Commonwealth government should reconsider its response to this recommendation of the Hawke report. (Paras 2.58 – 2.59)
  • The department has confirmed that it is not currently exploring, or negotiating internally, or with states, options for transferring EPBC Act approval responsibilities to the states. (Para 2.61)

The Coalition Additional Comments (Senator Simon Birmingham (LP, SA) and Senator Bridget McKenzie (NATS, VIC)):

  • The Coalition Senators note with disappointment the majority report’s statement (Para 1.1)
  • Coalition Senators accept the case for streamlining of regulatory processes including through the use of bilateral agreements for both assessments and approvals (Para 1.4)
  • There is no reason why assessment and approvals procedures cannot be made more efficient without any diminution of environmental or heritage standards (Para 1.5) … Point to Deloitte Access Economics report of April 2011 (Para 1.18)
  • Coalition Senators find the argument that a state or territory may have “an incentive to approve” proposals because they may receive “economic benefits from the development under consideration” especially perverse (Para 1.18)
  • Coalition Senators find the attack by Labor Senators on the concept of competitive federalism, which they suggest risks a “race to the bottom on environmental protection” as concerning (Para 1.19)
  • Seeking smarter and more efficient ways to deliver environmental regulation without reducing environmental standards should be an objective of all levels of government (Para 1.19)
  • Coalition Senators support the majority report’s recommendation that this bill not be passed, but do so without the extensive reservations made by Labor Senators (Para 1.21)