Chapter 2
Matters raised in relation to the Bill
Comments in support of the Bill: concerns with existing decision-making
processes
2.1
Submissions in support of the Bill typically argued that Parliamentary
disallowance is necessary to ensure a transparent, democratic process for
establishing bioregional plans and Commonwealth marine reserves. For example, in
evidence to the committee, Dr Coghill submitted:
My clear perspective is that it is absolutely important to
effective parliamentary democracy that the parliament have the opportunity to
scrutinise, and if appropriate, disallow any action taken by the executive. It
follows from that that I support the effect of the legislation as it seems to
me that it would enable the parliament to scrutinise particular decisions by
the relevant minister and, if after examination they felt so moved, to disallow
such an instrument. My position is on that primary issue of accountability of
the executive to the parliament.[1]
2.2
While Dr Coghill's submission focused on what he characterised as a general
principle for effective democracy,[2]
similar views were expressed by marine industry stakeholders.
Mr Russell Conway, Chair, Recfish Australia argued that 'including
the public and their elected representatives in [the] decision-making process
makes good sense and follows good governance guidelines'.[3]
Mr Wayne Bayne, Divisional Chair, Coral Sea Access Alliance,
concurred, stating that '[e]lected parliamentarians should be afforded the
right to participate in a decision that will affect those whom they represent.'[4]
Similarly, Marine Queensland submitted that Parliamentary participation is
necessary to ensure fair and accountable decision-making:
As we see it at the moment the process is one where the
minister has the ultimate decision-making power. This is not an aspersion
against any persuasion of government but our view is that, consistent with any
sort of natural justice type mechanism, it would also be appropriate that an
additional review mechanism be an outcome.[5]
2.3
It was apparent that underling these views are concerns with the
existing consultation processes for establishing bioregional plans and
Commonwealth marine reserves. The Department advised that public consultation is
intended to create 'a shared understanding of the conservation objectives and
priorities in a region' and promote decisions that are 'based on accurate
information'.[6]
2.4
However, it was put to the committee that the consultation process fails
to meet these objectives. Mrs Judy Lynne, Executive Officer, SunFish
Queensland, argued that the consultation process does not ensure that community
views appropriately inform Ministerial decisions:
As for input, once again, it goes back to a lot of the input
that we have had through the whole process. We have been given the opportunity
to have our say, but a lot of that does not appear anywhere in any of the
results or the outcomes. A perfect example would be, right at the very
beginning of the bioregional planning process when we were asked for opinions
on the categories and the determinations, we were very clear that we were not
comfortable with the ICUN categories that they were using; that there were
Australian standards that more suited our environment and Australia's
requirements.[7]
2.5
Similarly, Mr Conway, Recfish Australia, also questioned the utility
of the consultation process, commenting that the organisation would 'support
any process that may increase the transparency of decision making.' Mr Conway
further stated that 'the process should be...open to full scrutiny by all
stakeholders'.[8]
Mr Peter Todd, Vice President, Tin Can Bay Chamber of Commerce and
Tourism Inc, raised similar concerns with the merits of the existing processes,
arguing that Parliamentary disallowance may lead to 'more genuine' consultation
and decision-making.[9]
2.6
Submissions also questioned the objectivity of current consultation processes.[10]
The concerns are reflected in the statement of the South Australian Marine
Parks Management Alliance, which submitted that inappropriate weight is given
to the views of environmental groups:
...decisions related to the establishment and management of
marine parks should not be the responsibility of any single Minister or person
but should be subject to broader examination through parliamentary process. It
is only in this way will the risk of undue influence by these [environmental
groups] be reduced.[11]
2.7
Concerns were also expressed regarding the extent to which the
consultation process is effective in gathering relevant scientific analysis. Representatives
from SunFish Queensland and the Australian Fishing Trade Association (AFTA)
submitted that the Department's advice to the Minister is based on 10 year old
data.[12]
AFTA further commented that there is little engagement with stakeholders on the
scientific basis of the proposed bioregional plans and Commonwealth marine
reserves:
I am just saying that there are voices being heard in the
making of bioregional requirements that Australia has signed off on. We know
that prior to public release maps have been taken to certain stakeholders for
their opinion and so forth on it. We know that has taken place. But behind all
of this what has not been made available to recreational fishers and possibly
others is any form of briefing on the science used to determine these areas of
closures. We have never been presented with science to explain why this is
important and why it is not important. None of that has ever taken place up to this
point. I think that is a major concern. Where is the science?[13]
2.8
However, these concerns were not supported by all who presented evidence
to the committee. A number of submissions argued that the consultation
processes are both effective and comprehensive. For example, Mr Chris Smyth,
Healthy Oceans Campaigner, Australian Conservation Foundation (ACF),
characterised the consultation processes as 'long, complex and inclusive'.[14]
The PEW Environment Group commented that the consultation processes are 'extensive'.[15]
Similarly, while considering that there is 'room for improvement', Mr Darren
Kindleysides, Director, Australian Marine Conservation Society (AMCS) also did
not share the concerns with the consultation processes but argued that it is
'adequate and sufficiently robust'.[16]
2.9
Mr Stephen Oxley, First Assistant Secretary with the Department, explained
to the committee the consultation processes. Whilst acknowledging that
'perhaps...[the Department] clearly could have been a little bit more proactive
in terms of the active provision of information', Mr Oxley advised that there
is 'a very good amount of information available publicly about the science
underpinning what we do'. The committee was informed that the Department's
website provides:
...technical analysis of the performance of the network
proposal...against the goals and principles for the establishment of the
national representative system of marine protected areas in Commonwealth
waters. That document itself is extensively referenced and includes tables
which have in them the references to the key datasets that the department has
used in developing the marine reserve network.
I think we also have on the website a super table that
provides again references to all the key datasets that we have used, who owns
them, whether or not they are public and where they are publicly available by a
web link, the web link is there and where they are publicly available on
request it will say: you will need to contact the Fisheries Research and
Development Corporation or CSIRO for this information, whoever the data owner
is where it is not a publicly accessible database by the click of a button on a
web page.[17]
2.10
In addition to divergent views regarding the efficacy of the current
consultation processes, it was apparent that there was also a lack of consensus
about whether Parliamentary disallowance would lead to more transparent and
informed decision making. This is evident in the statement by Professor Robert Kearney
that:
...having read the documents, I came away rather
ambivalent...the level of information that the Senate has before it will
largely determine the ability of the Senate to make the right decision.[18]
2.11
Mr Joyner, AFTA, also questioned whether Parliamentary disallowance will
result in a more transparent process:
We are very concerned so far with the processes of
consultation up to this point, and that is probably the main thrust of our
submissions to you today. Whether or not a disallowance is a suitable
instrument is yet to be seen.[19]
2.12
Furthermore, it was put to the committee that the Parliamentary
disallowance process may reduce, rather than increase, public input into the
formation of bioregional plans and Commonwealth marine reserves. The ACF argued:
The disallowance of such plans also undermines the good
faith, input and efforts with which the community has engaged in the planning
process, leaves the community with uncertainty about the future management of
these areas, and the possibility of having to revisit the process again.
This further risks community consultation fatigue,
disenchantment and cynicism with the value of such government processes.[20]
2.13
The AMCS, the Human Society International and the PEW Environment Group expressed
similar views.[21]
According to the AMCS:
...to introduce the potential for disallowance at the end of [the
consultation] process could deter rather than encourage engagement in the
formal consultation process. It could undermine public confidence in the
process and build uncertainty for stakeholders.[22]
2.14
Mr Andrew Macintosh, Associate Director, ANU College of Law, also noted
the potential for stakeholder uncertainty:
There might be an understanding generated by that level of
public participation that at the end when the government says there is going to
be a marine park, there is going to be marine park and the boundaries will be
those boundaries set by the government.[23]
2.15
Mr Macintosh further advocated that, to minimise stakeholder confusion,
the Bill if passed would require consequential amendments to the consultation
process. According to Mr Macintosh, 'there might be cause to make it very clear
to all parties all the way through the process that this final instrument is
subject to disallowance.'[24]
Concerns with the Bill
2.16
Several concerns were expressed with the proposal for bioregional plans
and Proclamations for Commonwealth marine reserves to be subject to
Parliamentary disallowance. Concerns included that the disallowance process may
compromise Australia's compliance with its environmental management commitments,
may have significant, adverse practical and financial implications, and create
unnecessary uncertainty for affected businesses and communities. It was also
queried whether it was intended to make bioregional plans subject to
Parliamentary disallowance.
Australia's environmental commitments
2.17
Concerns were raised with the effect of the disallowance process on
Australia's national and international environmental commitments. The ACF submitted
that the development of Commonwealth marine reserves fulfils Australia's
national and international environmental management responsibilities:
[The Commonwealth government has established Commonwealth
marine reserves] to satisfy international obligations and so the Convention on
Biological Diversity certainly obligates nation states to develop and establish
networks of marine reserves. They have also done it to implement the national
representing system in marine protected areas which has been signed on by all
state and territory governments and the Commonwealth, and to also bring ocean
protections in line with what we have been doing on land for the past century,
that is to create national parks to protect wildlife.[25]
2.18
The committee has previously noted the relevance of Commonwealth marine
reserves to Australia's cross-jurisdictional commitment to develop the NRSMPA.[26]
The Department confirmed the relevance of Commonwealth marine reserves to
international environmental management strategies. The Department advised that,
through the Johannesburg Plan of Implementation agreed at the 2002 World Summit
on Sustainable Development, Australia has committed to:
[d]evelop and facilitate the use of diverse approaches and
tools, including the ecosystem approach, the elimination of destructive fishing
practices, the establishment of marine protected areas consistent with
international law and based on scientific information, including representative
networks by 2012 and time/area closures for the protection of nursery grounds
and periods, proper coastal land use and watershed planning and the integration
of marine and coastal areas management into key sectors.[27]
2.19
It was put to the committee that, by providing for the disallowance of
Commonwealth marine reserves, the proposed amendments to the EPBC Act may
compromise Australia's fulfilment of its international commitments. The ACF
stated that Bill 'would also delay or undermine our meeting of international
obligations under the Convention on Biological Diversity where we are expected
to establish a network of marine reserves.'[28]
The Department shared this concern, commenting that:
[t]he Bill, if passed, in itself would not cause Australia to
fail to meet its international commitments and obligations. However, if the
Parliament subsequently was to disallow the proclamation of new Commonwealth
marine reserves, it is possible that Australia would not meet the commitments
it made at the World Summit on Sustainable Development in 2002.[29]
Financial implications
2.20
A number of submissions challenged the statement in the Explanatory
Memorandum that the Bill would have 'no financial impact'.[30]
Several estimates were put to the committee regarding the cost of the
bioregional planning process, which ranged from $8 million to $10 million.[31]
Concerns that extending Parliamentary disallowance to include bioregional plans
would significantly increase the cost of marine management are reflected in the
statement of the Humane Society International:
The current cost of the program alone is $8 million a year
and it’s been at that level since inception in the late 1990s. We believe that
the Bill would lead to an increase in the costs of marine bioregional planning
process and cause significant delays to improving the protection and management
of our ocean life. We therefore disagree with the statement in the explanatory
memorandum that there are no financial impacts of the proposed Bill. In
contrast, we consider there to be substantial financial impact should a
bioregional plan be disallowed.[32]
2.21
Similar concerns were expressed regarding the cost of making Proclamations
for Commonwealth marine reserves disallowable instruments. The ACF argued:
The bulk of [bioregional planning process] money would be
wasted were the marine reserve declarations process disallowed. The government
of the day would also need to find additional funds to initiate a new process
to identify and select a marine reserve network acceptable to Parliament and to
satisfy Australia’s international commitment to establish marine reserve
networks. This is in contrast to Senator Colbeck’s statement in his explanatory
memorandum to the Bill that disallowance would have no financial cost.[33]
2.22
Similarly, the PEW Environment Group commented:
...there will be a cost to the public purse. This arises from
the need to restart the process with a revised marine reserve proposal and a
further round of public consultation before a new marine reserve can be
declared.[34]
2.23
Mr Macintosh also noted the potential financial impact of the proposed
measures, stating that the consultation process may require review 'to make sure
that we do not waste a lot of money on consultation that actually ends up being
obsolete because it is subject to disallowance.'[35]
Uncertainty for affected businesses
and communities
2.24
It was also submitted that disallowance of Commonwealth marine reserves
would have significant ramifications for members of affected communities,
stakeholders and the Australian Government. The Department advised that compensation
is generally provided to businesses whose operation is affected by the
establishment of Commonwealth marine reserves.[36]
The compensation is generally provided in advance, to ensure that the marine
reserves come into effect on the intended date. The committee was informed that
a subsequent disallowance of a Commonwealth marine reserve would have significant
financial ramifications for affected businesses and cause procedural concerns
for the government:
It would be a very difficult situation indeed if the
government had gone ahead and invested significantly in industry structural
adjustment and then found itself in a situation where money had been paid on
the basis of the declaration of a marine reserve only to have that declaration
not take effect. I think the government or the department then would be having
some quite serious and hard thinking to do about how we would deal with the
circumstances of those individuals. It would be a very messy scenario.[37]
2.25
The Department further advised that the Bill, if passed, would delay the
provision of compensation, for 'any structural adjustment assistance could only
be reasonably delivered after the Parliament had had the opportunity to
disallow the Proclamation.'[38]
The Department also commented that disallowance would cause ongoing uncertainty
for affected businesses and other stakeholders:
It is also possible that the disallowance of a Commonwealth
reserve proclamation could lead to ongoing uncertainty for potentially affected
businesses if the government intended to revisit the proclamation following
expiry of the six‐month
period during which a legislative instrument could not be resubmitted to the
Parliament following its disallowance.[39]
2.26
The committee also notes the possible maximum duration of the
Parliamentary disallowance period (of up to approximately six months) during
which the fate of the bioregional plan or the marine reserve would remain
uncertain.[40]
Inclusion of bioregional plans in
the disallowance process
2.27
It was also questioned whether, given the amendment to the Bill to
include the process of establishing Commonwealth marine reserves, it was actually
intended to make bioregional plans subject to Parliamentary disallowance.[41]
It was put to the committee that the disallowance process should not apply to
bioregional plans, given the plans' nature and purpose.[42]
This view is reflected in the statement by the Humane Society International
that amending the EPBC Act to make bioregional plans disallowable 'appears to
be an inappropriate tool for little purpose'.[43]
Mr Smyth, ACF, also queried the value of Parliamentary disallowance for
bioregional plans:
Bioregional plans are information documents. Their purpose is
to assist the minister with decision making under the Act. It does not make any
sense for parliament to disallow an information document that assists the
minister to make informed decisions.[44]
2.28
The Department also commented on the effect of making bioregional plans
disallowable non-legislative instruments:
As to the implications of disallowing a bioregional plan...there
is no immediate effect of such a declaration because really what we are seeking
to do through the bioregional plans is to provide information to support better
informed and better decision making under the EPBC Act, but the reality is that
if a bioregional plan was disallowed the minister would still be, within the
bounds of the Act itself, well able to take account of the information that is
being presented in the bioregional plan so long as doing so is consistent with
his obligations under the Act.[45]
2.29
However, the Department highlighted the implications of the proposal for
the efficient administration of the Act and for persons seeking to use areas of
land or sea covered by a bioregional plan:
...section 37A gives the minister the ability to make a
declaration that an action that is being taken consistent with the provisions
of a bioregional plan does not need to be referred and assessed under the EPBC
Act. In the making of a declaration such as that, which would be a disallowable
instrument, there is the opportunity to streamline and make more efficient the
operation of the EPBC Act. The disallowance of a bioregional plan would be the
loss of an opportunity to make a declaration that improved the overall
administration of the Act.[46]
Committee view
2.30
The committee notes the concerns with the consultation process for
bioregional plans and Commonwealth marine reserves. However, evidence presented
to the committee regarding the effectiveness of existing consultation processes
is inconclusive.
2.31
While drawing the Minister's attention to the concerns with the
consultation process, the committee notes that it has not been demonstrated
that there are concerns that must be addressed to strengthen the consultation
processes. Nor has it been established that any such concerns could be effectively
addressed through Parliamentary disallowance.
2.32
On the contrary, evidence to the committee highlights the potential
hazards of introducing Parliamentary disallowance to the process of
establishing bioregional plans and Commonwealth marine reserves. The committee
is particularly concerned with the potential financial hardship and uncertainty
that the disallowance process may cause affected businesses, communities and
other stakeholders. The committee is also concerned with the potential impact
of the disallowance process on Australia's fulfilment of its international environmental
management obligations. The committee considers that the Bill, if passed, would
not contribute to a more effective and efficient environmental management
process. For these reasons, the committee recommends that the Bill not be
passed.
Recommendation 1
2.33 The committee recommends that the Senate not pass the Environment
Protection and Biodiversity Conservation Amendment (Bioregional Plans) Bill
2011.
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