Australian Greens' dissenting report

1.1Schedule 2 Part 2 of this Bill is a blatant carve out for the oil and gas industry, giving the Minister for Resources a blank cheque to bypass environment laws and silence First Nations voices. The Australian Greens believe this Schedule must be deleted from the Bill immediately.

1.2This very week the World Meteorological Association reported that every single climate indicator was broken in 2023. Ocean heat, waves, land surface temperatures, glacier melt, sea level rise, ocean acidification, sea ice retreat - every single record was broken.[1]

1.3Global emissions are at an all-time high,[2] they are not reducing as they need to - so all these records will soon be broken again and again.

1.4This is the context within which the Albanese Government has introduced Part 2 of Schedule 2 of this Bill to purposely fast track the very gas projects that are hastening our planet’s demise.

1.5The International Energy Agency has said that to meet even the risky target of net zero by 2050, no new coal, oil or gas infrastructure can be built.[3] If approved, the 380 million tonnes of pollution from the offshore Barossa gas project will more than wipe out the benefit of the Government’s proposed electric vehicle policy. The Albanese Government needs to choose: no new coal or gas or abandon their climate targets.

Workers’ safety

1.6The Australian Greens acknowledge that the vast majority of the Offshore Petroleum and Greenhouse Gas Storage Legislation Amendment (Safety and Other Measures) Bill 2024 (the bill) relates to much needed changes to improve the safety of those who work offshore. The Australian Greens support these changes and acknowledge that many of these changes were recommended by the Offshore Oil and Gas Safety Review process from 2021.

1.7Our concerns and the remainder of this report will pertain to the timing of this bill and the inquiry and Schedule 2 Part 2 of the bill.

Timing of bill and inquiry

1.8The Australian Greens are deeply concerned about the rushed nature of this bill and the inquiry. Stakeholders were either not told about this bill at all, or when briefed, were not told about Schedule 2 Part 2. There was no public consultation period on this bill that allowed for feedback from stakeholders, only private, closed doors briefings which the Government has not released information about who was consulted and when.

1.9Similarly, this inquiry has been extremely rushed and Senators were only afforded a half day hearing to ask questions and scrutinise these changes. Concerns about the impacts that the timing had on stakeholders’ ability to engage meaningfully with this bill were expressed by the Climate Council, Environmental Defenders Office, Australian Marine Conservation Society, Ms Cooper and Dr Pascoe. Ms Leonard from Friends of the Earth described this inquiry process as “incredibly and unusually short” and further said that “To have this amendment brought before the parliament under such a tight time frame—with five working days to review it—is, I think, an appalling misuse of democracy.”[4]

1.10Evidence from the committee hearing indicated that the Department of Industry, Science and Resources have been working specifically on Schedule 2 Part 2 since September.[5] In correspondence released under FOI from the CEO of Santos, Mr Gallagher, asked Minister King for ‘urgent action to deliver regulations which provide clarity and certainty for industry.’[6] This letter is dated 6 October 2023 and shows that this change has been added to the bill at the request of Santos.

Schedule 2 Part 2

1.11Schedule 2 Part 2 of the bill creates a carve out for offshore gas from the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) by delegating powers to the Minister for Resources to make changes to the offshore gas approvals framework with no oversight from the environment laws or Environment Minister. The fact that this is the first legislative change the Government has made in this space after the referendum and that it is one of their first bills of the year, shows the Government’s true priorities. This is a blank cheque for the Minister for Resources to reduce consultation requirements and environmental standards as they see fit in order to silence First Nations voices and fast track offshore gas approvals.

1.12Many stakeholders in their submissions called for this section of the bill to be removed or delayed including:

Climate Council;

Doctors for the Environment Australia;

The Australia Institute;

The Maritime Union of Australia;

The Wilderness Society;

Environmental Justice Australia;

Environmental Defenders Office;

Dr Megan Evans;

Australian Centre for Corporate Responsibility;

Nurrdanlimji Native Title Corporation;

Wide Bay Burnett Environment Council;

Humane Society International Australia;

Electrical Trades Union;

Australian Conservation Foundation;

Greenpeace;

Australian Marine Conservation Society;

Friends of the Earth Australia; and

Biodiversity Council.

1.13Out of the 26 submissions for this bill, 18 recommended Schedule 2 Part 2 be removed or delayed.

1.14It is clear that the only people who want this change are the gas industry and the Government who are taking their orders from the gas industry. The Government is ignoring the wishes of First Nations people, unions, climate and environment groups and other organisations who have all called for Schedule 2 Part 2 be removed.

Bypassing critical environment protections

1.15In delegating powers to the Resources Minister and creating a carve out for offshore oil and gas approvals, Schedule 2 Part 2 of this bill undermines our Environment Minister, environment laws and the protections they are intended to provide.

1.16As noted by Dr Megan Evans in her submission, the proposed provision effectively says that “if an action is proposed but does not meet the requirements of an endorsed program for offshore petroleum or greenhouse gas storage under environmental laws, then despite not meeting those requirements, the action should be considered as being compliant”.[7] This is Orwellian and entirely illogical - breaking the law, in this case, is not breaking the law.

1.17Under these broad powers, the Resources Minister could make any changes to environmental standards and consultation requirements, and approve offshore oil and gas projects regardless of whether they meet legislated standards or not. It makes our environmental laws and the protections they provide redundant.

1.18Gas companies should not be allowed to bypass environment law and ignore the views of the community while wrecking our beaches and coastline. This damaging provision had been tacked onto an otherwise good law about improving worker safety. The Australian Greens believe it must be dropped so the parliament can get on with protecting workers’ rights and the environment without delay.

Pre-empting ongoing consultations

1.19In bypassing our environment laws, the Government is proposing to pre-empt ongoing consultation and reform processes under both the EPBC and OPGGS Acts, undermining these processes and all the voices of the stakeholders participating in them.

1.20The Albanese Government committed to reforming our environment laws to address the existing shortcomings in a holistic way that strengthens protections for the environment. This would include changes to strategic assessments, the system through which the OPGGS Act is accredited under the EPBC Act. These consultations are ongoing, with much detail and feedback still to come.

1.21This provision proposed in this Bill is entirely inconsistent with the Government’s commitment, which was to reform strategic assessments to incorporate new national environment standards and ensure they are subject to oversight from an independent environmental protection authority.[8]

1.22Instead, this provision would make the strategic assessment and endorsed program for offshore gas entirely redundant - namely, creating a carve out from our environmental laws for offshore gas.

1.23It is bad faith for the Government to attempt to bypass this process ahead of time for their Resources Minister’s own agenda. It demonstrates an intent for expanding offshore gas rather than listening to experts, stakeholders, First Nations people and local community members.

1.24In addition to EPBC reform, in January 2024 the Government released an issues paper for the Offshore Petroleum and Greenhouse Gas Storage Environmental Management Review. This review was first announced in the May 2022-23 Budget and is expected to be ongoing for three years.

1.25According to the Department of Industry, Science and Resources website, this review will ensure that the environmental management regime:

is fit for purpose in a decarbonising economy

reflects best practice for offshore environmental management

is consistent with reforms to the national environmental legislation that the Department of Climate Change, Energy, the Environment and Water is developing under the Nature Positive Plan

is consistent with Australia’s international obligations for emissions and sustainable development.[9]

1.26Schedule 2 Part 2 of this bill pre-empts any findings of this review as highlighted from Dr Ryan from the Australia Institute who stated that “This legislation pre-empts the outcomes of both the DISR review process into the OPGGS and ongoing review of the EPBC Act.” Ms Cooper added, “Before it [the review] was even finished, Minister King completely pre-empted it by introducing new laws to make it easy to sidestep regulations and whitewash community concerns.”

1.27Not only does Schedule 2 Part 2 pre-empt the findings of this review and cut out the Environment Minister from the approvals process, it also impacts the ability of the Department of Climate Change, Energy, the Environment and Water to do their jobs in upholding and administering Australia’s environment laws.

1.28The Australian Greens hold grave concerns about the integrity of this review process given the Government are pre-empting the findings of it with legislative change before submissions responding to the issues paper were even closed.

1.29That Schedule 2 Part 2 of the Offshore Petroleum and Greenhouse Gas Storage Legislation Amendment (Safety and Other Measures) Bill 2024 be removed.

If Schedule 2 Part 2 is not removed, that the bill be opposed.

First Nations

1.30Since 2022 Traditional Owners and community members from the Tiwi Islands and Murjuga have taken both Santos and Woodside to courts respectively specifically regarding their lack of consultation and consideration of cultural heritage.

1.31These cases, regarding consultation, were successful and are historic judgements with regards to the right of First Nations voices to be heard regarding matters on their country and confirming in common law that First Nations people are included in the definition of ‘relevant people’. Now the Government, at the request of Santos, is changing these laws.

1.32As Ms Wokai Bourke, a Tiwi Elder from the Malawu clan, stated in her opening statement during the inquiry:

When we use your law to stand up for ourselves and win, you want to close that gap so you can keep ignoring us by allowing Santos and the media to disrespect us. It is a real shame.

Us Tiwi elders and leaders from the community of Munupi came together and we decided—not some lawyers or environmentalists—to take the government and Santos to court to have our voices heard. Santos only consulted us Tiwi people because we won in court, and they are still complaining about having to consult with us, along with all of the other mining companies. That is why we are here, right? The government wants to take away what we worked so hard for, because this change to the legislation will give you all a right to ignore us again.[10]

1.33Many First Nations people spoke to the importance of strong consultation requirements, including being considered ‘relevant people’ and cultural obligations that First Nations people have to protect cultural heritage, tangible and intangible, both on land and sea country. Songlines, song and dance, items of culture that cannot be physically touched or passed down such as artwork or artefacts are equally important and as equally as deserving of protection.

1.34Mr Tamu and Mr Billy from the Torres Strait 8 also said the following:

We are experiencing the impacts of climate change, with rising seas threatening our island home. We are saltwater people. Our connection to the country doesn't stop at the water's edge. We have stewardship of our marine reserves and traditional fishing areas. Our country covers the islands and the waters around them that have been important to generations of our families. Our oceans have fed us, are home to our totems and are central to our culture.[11]

Consultation with traditional owners must be done properly. We have a right to a voice about what happens in our sea country. There is nothing in this bill about our rights to be heard when it comes to our country. Instead, it is proposing to remove oversight for offshore oil and gas, which is not acceptable. We are concerned that this could lead to less consultation with traditional owners about what happens on their sea country. We are feeling the impacts of climate change on our country, and we are here to stand with other nations who are feeling the impacts of oil and gas extraction on their country.[12]

1.35Dr Pascoe from Saltwater People:

Our songlines are sacred to us. They have been passed on to us through lore, generation to generation, for the sustainability and longevity of all life on Earth. It is our collective responsibility to pass them on to our children intact. If they are destroyed through neglect or by turning a blind eye to decisions made that impact on them, we will have failed our obligations to our culture and to ancestors who have come before us. If the government of Australia facilitates that destruction, it will stand in the way of our cultural practice and the expression of our self-determination. It will tear our hearts out again and sever our cultural connection to our culture and country.[13]

1.36Ms Wokai Bourke:

For us Tiwi people, our ties to sea country are so important to the survival of our connection to our cultural and spiritual beliefs, which non-Indigenous people may not understand or comprehend. Our connection to sea country is way too strong, and it has been since the creation of time for us. The water may have risen and moved over time, but it has never interrupted our spiritual connection to the land that is now under water. We will always be part of the sea environment and the land where our ancestors lived, where they are buried and where they practised our ancient culture.[14]

1.37Ms Cooper from Murugja:

They just want us to shut up and go away, so big business can keep destroying my home, my ngurra, my everything. Well, I'm not going to let them and nor should this parliament.[15]

1.38As well as the Government actively trying to silence these voices, which ultimately impacts First Nations people’s ability to fulfil their cultural obligations, as Dr Pascoe highlighted, it also contradicts what the Government has committed to in its response to the A Way Forward Report from the Joint Standing Committee on Northern Australia.[16] Recommendation 1 calls for matters of First Nations cultural heritage to sit with the Minister for Indigenous Australians, this is the only recommendation from this report the Government did not agree to.[17]

1.39Recommendation 3 of this report calls for ‘a new framework for cultural heritage protection at the national level.’[18] This should be co-designed and develop minimum standards, according to the recommendations from this report. The Government has committed to the development of this legislation but we still do not have a timeline for when we can expect an exposure draft or when the Department of Climate Change, Energy, the Environment and Water will conduct public consultations.

1.40Further, this change is against Australia’s obligations under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). A number of the relevant Articles are below.

1.41Article 11.1:

Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.[19]

1.42Article 11.2:

States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.[20]

1.43Article 18:

Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.[21]

1.44Article 25:

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.[22]

1.45It is telling that this Government is willing to ignore its international obligations under UNDRIP to make changes for the benefit of the gas industry and shows the state capture. The Statement of Compatibility with Human Rights included in the Explanatory Memorandum for this bill does not mention UNDRIP at all. First Nations people have rights under UNDRIP that this Government has refused to enshrine into law. First Nations peoples have not provided their free, prior and informed consent for the violation of their laws, customs and traditions, as contained in Article 11.2 and it is evidence that they have not been afforded the right to participate in decision-making in a genuine way that aligns with First Nations protocols as stated by Article 18.

1.46It is clear in the evidence provided to the committee that First Nations people are deeply concerned about the impacts fossil fuel projects can and are having on their country. They are speaking up and they are ignored. Under the current framework there is no requirement for proponents to identify First Nations cultural heritage, tangible or intangible. This legislative gap has allowed for these issues to arise and leaves litigation as the only option for First Nations people.

1.47That the Offshore Petroleum and Greenhouse Gas Storage legislative framework be amended to ensure that:

First Nations people, Traditional Owners and Knowledge Holders are included in the definition of ‘relevant people’;

First Nations people, Traditional Owners and Knowledge Holders have a veto power over any developments in their sea country; and

During any consultations for Offshore Project Proposals and/or Environment Plans, proponents are required to identify areas of underwater cultural heritage, both tangible and intangible, how the activity may impact it and how these potential impacts can be avoided or mitigated.

1.48That the Government amend the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) to ensure that the United Nations Declaration on the Rights of Indigenous Peoples is considered within The Statement of Compatibility with Human Rights included in the Explanatory Memorandum, including the principle of free, prior and informed consent, and that the sponsors of bills are required to provide the relevant information to prove that our obligations are being met.

Senator Dorinda CoxSenator Sarah Hanson-Young

MemberMember

Greens Senator for WAGreens Senator for SA

Footnotes

[1]Jess Davis, ‘The World Meteorological Organisation’s State of the Global Climate report confirms 2023 broke every single climate indicator’, ABC News, 20 March 2023, https://www.abc.net.au/news/2024-03-20/wmo-climate-records-broken-global-temperature/103604076 (accessed 21 March 2024).

[2]Jess Davis, ‘The World Meteorological Organisation’s State of the Global Climate report confirms 2023 broke every single climate indicator’, ABC News, 20 March 2023, https://www.abc.net.au/news/2024-03-20/wmo-climate-records-broken-global-temperature/103604076 (accessed 21 March 2024).

[3]Florida Harvey, ‘No new oil, gas or coal development if world is to reach net zero by 2050, says world energy body’, The Guardian, 18 May 2021, https://www.theguardian.com/environment/2021/may/18/no-new-investment-in-fossil-fuels-demands-top-energy-economist (accessed 21 March 2024).

[4]Ms Freja Leonard, No More Gas Campaign Coordinator, Friends of the Earth Melbourne, Committee Hansard, 14 March 2024, p. 32.

[5]Mr Robert Jeremenko, Head, Oil and Gas Division, Department of Industry, Science and Resources (DISR), Committee Hansard, 14 March 2024, p. 43

[6]Department of Industry, Science and Resources (DISR), Freedom of Information LEX 74088, February 2024, https://www.industry.gov.au/sites/default/files/2024-02/disclosure-log-24-011-74088.pdf (accessed 21 March 2024).

[7]Dr Megan Evans, Submission 26, p. 1.

[8]Dr Emily Gibson, Reforming Australia’s national environmental law: an overview of the government’s response to the Samuel Review, Parliamentary Library Research Paper, November 2023, https://parlinfo.aph.gov.au/parlInfo/download/library/prspub/9458913/upload_binary/9458913.pdf (accessed 21 March 2024).

[9]DISR, Offshore Petroleum and Greenhouse Gas Storage Environmental Management Review, https://www.industry.gov.au/mining-oil-and-gas/oil-and-gas/offshore-oil-and-gas/offshore-petroleum-and-greenhouse-gas-storage-environmental-management-review (accessed 21March2024).

[10]Ms Terese Wokai Bourke, Private capacity, Committee Hansard, 14 March 2024, p. 35.

[11]Mr Daniel Billy, Claimant, Torres Strait 8, Committee Hansard, 14 March 2024, p. 19.

[12]Mr Kabay Tamu, Claimant Torres Strait 8, Committee Hansard, 14 March 2024, p. 19.

[13]Dr Jack Pascoe, Saltwater People, Committee Hansard, 14 March 2024, p. 20.

[14]Ms Bourke, Committee Hansard, 14 March 2024, p. 35.

[15]Ms Raeleen Cooper, Private capacity, Committee Hansard, 14 March 2024, p. 36.

[16]Joint Standing Committee on Northern Australia (JSCNA), A Way Forward: Final report into the destruction of Indigenous heritage sites at Juukan Gorge, October 2021, pp. xxv–xxiv.

[17]JSCNA, A Way Forward: Final report into the destruction of Indigenous heritage sites at Juukan Gorge, October 2021, p. xxv.

[18]JSCNA, A Way Forward: Final report into the destruction of Indigenous heritage sites at Juukan Gorge, October 2021, pp. xxv.

[19]United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), article 11.1 https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf (accessed 21 March 2024).

[20]UNDRIP, article 11.2 https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf (accessed 21 March 2024).

[21]UNDRIP, article 18 https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf (accessed 21 March 2024).

[22]UNDRIP, article 25 https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf (accessed 21 March 2024).