Mr BAYLEY (Clark) – I move –
That the House –
(1) Notes the Government’s view, expressed in the opening paragraph on its consultation webpage that ‘The State Coastal Policy 1996 (SCP) is a critically important part of the State’s Resource Management and Planning System (RMS) and has served the State well in protecting the coast and providing for sustainable development…’
(2) Further notes that during the appeal process for the Robbins Island wind farm development the Government has decided to legislate to retrospectively validate approval of developments that were approved despite contravening the State Coastal Policy, including the Robbins Island development.
(3) Understands the Government has justified this legislation on the basis of ‘advice’ received in March 2024
(4) Acknowledges:
(a) that this advice, or a detailed summary of this advice, has not been publicly released – despite its significant nature and obvious public interest; and
(b) that the Government’s claim that existing coastal infrastructure will be at risk of legal challenge due to the implications of this advice has not been supported with evidence or examples.
(5) Orders the Premier, Hon. Jeremy Rockliff, MP to table, at least 24 hours before the consultation on the ‘Validation (State Coastal Policy) Bill 2024’ expires:
(a) A copy of the advice being relied upon to justify retrospectively validating the approvals of development, and subsequently amending the Tasmanian State Coastal Policy 1996; and
(b) a list of coastal infrastructure assets that have been identified as being at risk according to this advice.
The SPEAKER – Mr Bayley, do you to require a vote?
Mr BAYLEY – We require a vote. Thank you, honourable Speaker.
Let me begin by quoting from a submission from the Aboriginal Land Council about the 40,000 years of Aboriginal occupation of politica [TBC spelling], which is an ancient Aboriginal landscape:
Parpertloihener people, with their own dialect and history, their warriors and major events carved over centuries into the petroglyphs at Preminghana to where they travelled for cultural and social exchanges. In return the Tarkiner came to Robbins Island for dogwood spears when the three stars come. Great ceremonies were held amongst the two peoples on these occasions.
Robbins Island has a shared history. George Augustus Robinson visited numerous times as a staging point on his so-called friendly missions, where remnant groups of tribal Aboriginal people were rounded up and shifted to offshore detention, ultimately languishing at Wybalenna. This is a 40,000-year history.
The island and its surrounds also have significant environmental values. There are disease‑free devils, there are wedge‑tail and sea eagles. There is a plethora of migratory bird species that travel from the other ends of the earth to feed there. It is a very important place in a Tasmanian cultural, historical, environmental and indeed coastal context.
This is really important background in the context of what is quite an extraordinary step that is going to be presented to this parliament: to retrospectively validate the approval of a major internationally owned industrial development on Robbins Island. This involves private land that was never ceded to by its original owners, Crown land below the high tide mark and coastal waters. It is unprecedented also because it is currently subject to a live Supreme Court case being brought by the government’s own Environment Protection Agency (EPA). The proposed legislation to be brought before this House will actually pull the rug out from under the EPA.
Taking a couple of steps back to recap a bit, Robbins Island has, for many years, been proposed for wind farm of up to 122 wind towers of 270 m in height, new and upgraded roads, underground cables and three substations. There are going to be quarries, water storage and a bridge to mainland Tasmania, as well as a proposed wharf. It is being proposed by a Philippines‑owned company.
It is the wharf that is of significance to today’s debate and the advice this motion is seeking, and in the context of the validation bill that will be presented to this House, because the wharf is 509 m long. It goes off Back Banks beach on the north-east coast of the island. It is proposed for the transport of turbine parts and construction materials to the island and it is a constructed wharf landing through sand-dune country that is hundreds of metres long and up to 80 m wide in places. It is this wharf, and the scale of development in this particular location, a mobile dune system, that has been identified as being non-compliant with the state coastal policy, therefore it should not be approved, and the entire development should not be approved.
That is the issue currently being tested before the Supreme Court. Despite the fact that it is a live court case, the government is proposing to bring forward validation legislation . Instead of allowing that court case to proceed and react depending on the outcome of the case, the government wants to pre-empt the court case, strip the grounds in that case out from underneath the Environmental Protection Authority and invalidate its appeal.
Let me touch on the state coastal policy. The state coastal policy is one of only three state policies. We have the protection of agricultural land policy from 2009; the water quality management policy from 1997; and the coastal policy from 1996. The coastal policy, which is the pertinent one in this context, was the first state policy.
State policies are really important instruments. To quote from the website, they are:
…to articulate the Tasmanian government’s strategic policy direction on matters of state significance related to sustainable development of natural and physical resources, land use planning, land management, environmental management and environmental protection.
There should be more state policies. In 2014, the Liberal government promised to bring in a whole range of new state policies because state policies are really important. They are important parts of the planning scheme; they are overarching and they have an impact on all aspects of government decision-making. At the end of the day, they give effect to government policy and must be adhered to.
However, the government has not brought those policies forward as promised. Instead, it is legislating a whole raft of lesser Tasmanian planning policies with less impact, which only relate to the planning scheme and are less significant in terms of a planning instrument. That is somewhat of a digression.
The state coastal policy is a really important one. As an island state, I am sure we can all appreciate how important our coasts are. They are cherished by people across the state, they are integral to our clean, green brand, they pop up just about ubiquitously when it comes to tourism and other promotions, and they are incredibly sensitive. Every single coastal environment, including on our islands, is covered by the coastal policy, except for Macquarie Island, which has its own.
The policy deals with Aboriginal heritage. Aboriginal heritage, as many people would know, is writ large across the coastal strip, whether it be the living places, the petroglyphs or ancestral burial sites. Our coastal areas are important to Aboriginal people and heritage protection. As has been discussed in this place previously, including today, the Aboriginal Heritage Act was acknowledged by this government in this place three years ago as utterly failing to protect Aboriginal heritage. The State Coastal Policy is an important backstop when it comes to Aboriginal heritage.
The coastal environment is really sensitive. There are a number of different threatened species, a number of different fragile ecosystems. It is an important and sensitive area.
The coastal policy has three key principles, explicitly to be read together and not listed in any priority order: the natural and cultural values of the coast need to be protected; the coast should be used and developed in a sustainable manner; and the integrated management and protection of the coastal zone is a shared responsibility. These three principles have served us well, which the government acknowledges.
Let me read the part of the coastal policy that deals with coastal hazards, which is important stuff given climate change and the like:
1.4 Coastal hazards
1.4.1. Areas subject to significant risk from natural coastal processes and hazards such as flooding, storms, erosion, landslip, littoral drift, dune mobility and sea level rise will be identified and managed to minimise the need for engineering or remediation works to protect land, property and human life.
Specifically, and more importantly:
1.4.2. Development on actively mobile landforms, such as frontal dunes, will not be permitted except for works consistent with outcome 1.4.1.
That, 1.4.1, is the one I read out earlier. Development on these landforms will not be permitted except in those specific instances.
When it comes to the coastal policy, government repeatedly talks up the success of it, whether on the website or in the minister’s communication to stakeholders. For example, the website, which is currently inviting comment on the State Coastal Policy, starts by saying:
The State Coastal Policy is a critically important part of the state’s resource management and planning system and has served the state well in protecting the coast and providing for sustainable development.
It has served the state well in protecting the environment and providing for sustainable development. I hear that so often in this place – the need to balance the environmental risks and protections with development. The government claims that this policy has served us well in that regard. This is the crux of the question and the motion. If the State Coastal Policy has served the state so well, if it is about protecting values and providing for sustainable development, if the policy is working, as all indicators point to, why do we need to change it? We do not know because no justification has been given.
The thrust of this motion is to release the advice that states there is a problem and to list the infrastructure that is affected. It is a simple, straightforward motion. We have taken all the politics out of this in terms of the development at Robbins Island itself. It does not criticise the Robbins Island development, it does not make any comment about that. It is simply a raft of statements of fact in (1), (2), (3) and (4). They are all statements of fact that cannot be argued with. The crux of it is to order the Premier to release a copy of the advice he is relying on for the legislative validation that is going to come before this House and to list the coastal infrastructure he claims is going to be impacted unless that action is taken.
I believe the government is asking the House to take a very extreme measure that this government is asking this House to do. To retrospectively approve development – including a major destructive development on a sensitive coastline – on the basis that it has not received, it has not summarised, it has not even extracted, the key legal reasons and provided them for us.
It is simply not good enough, in my view and the Greens view, to say ‘Trust us, there is a problem and help pass this fix’. It is simply not good enough. We do not trust the government when it comes to these kinds of developments. We just had a long and lengthy debate about transparency, about releasing information, about putting information on the table so that we can see issues, and that is without this House even having to act on that information. This is a situation where this House is being asked to act to fix a problem and we have not been given the justification that there is a problem at all.
But this is the fix. This is why the fix is in. Pass this legislation so a destructive development, that would otherwise be refused, can be approved. Pass legislation that the government’s own Environment Protection Authority is challenging in the court and would probably be successful, because it is demonstrably non-compliant with the policy so that it can be approved. Pass this legislation that is championed by the Minister for Energy and Renewables. Perversely, also so that the Minister for Parks and Environment’s own Environment Protection Authority has its Supreme Court challenge killed off. It is simply not good enough to ask this House to do that without giving us the information and the justification that is needed.
How did we get here? A quick recap. The Circular Head Council and the Environment Protection Authority approved the Robbins Island wind farm. Civil society groups and individuals appealed the council approval to TASCAT, and the proponent itself appealed the EPA’s approval and the conditions that the EPA put on it. Both of these appeals were for TASCAT.
TASCAT upholds the council decision and rejects the EPA’s, effectively upholding the developer’s appeal and rejecting the EPA’s conditions. A civil society exercises its right to further appeal to the Supreme Court, as is entirely legitimate, and then the EPA – on advice that the state coastal policy has not been properly applied – joins that appeal.
On May 6 this year, Mr Duigan, Minister for Parks and Environment, flags March 2024 advice regarding the application of the Tasmanian State Coastal Policy. He says in the media release:
Minister for Parks and Environment, Nick Duigan, said that the government received advice in March regarding the application of the state coastal policy. This advice is different to the way the policy has been applied to developments in coastal areas since being introduced, Minister Duigan said. This could potentially impact on the use of all coastal infrastructure, including community infrastructure such as jetties and boat ramps.
This interpretation also led the Environmental Protection Authority joining an appeal against Robbins Island Wind Farm in March 2024, which has been approved by the council, with the decision upheld by TASCAT.
On 17 May, the EPA released a media release – that was not even released to the public until it was asked for by the Tasmanian Conservation Trust – that acknowledges that it erred in law and therefore had joined the appeal so that it could challenge, because the development in its view ran counter to the state coastal policy and it had erred in law by not properly applying the state coastal policy.
Then on 16 July, the minister released draft legislation that will be before the House stating again that:
The changes follow advice in March regarding the application of the Tasmanian coastal policy. The interpretation of the policy could potentially impact on existing coastal infrastructure including boardwalks through the dunes, fencing, lookouts, boat-launching facilities, bridges, and jetties, Minister Duigan said. It has also impacted on the approval given to the Robbins Island wind farm which needs clarification.
There it is, honourable Speaker. It is very clear that in our mind, and certainly without releasing the justification and the advice, that this is all about getting around the complications for the Robbins Island wind farm and the EPA’s Supreme Court challenge of the Robbins Island wind farm because of its contravention of the state coastal policy. To be clear, we are not seeking the EPA’s advice that it is relying on to inform its decision to join the Supreme Court and to prosecute it. Clearly, the EPA believes that the State Coastal Policy has not been applied and thus it is compelled to appeal. What we are seeking is the advice that the government itself received, and that is explicit in those media release statements from Mr Duigan. We are seeking advice the government has received and is relying on to justify retrospective approval of the wind farm and a subsequent change to the State Coastal Policy.
This is a two‑part process to approve the wind farm and water down the State Coastal Policy. The retrospective validation legislation will approve the wind farm and annul or do away with the EPA’s appeal of the wind farm in the Supreme Court, and then subsequently it looks like we are going to have a discussion paper about the State Coastal Policy and they perhaps will go through the proper process – who knows? Let us wait and see but maybe they will go through the proper process around changing the State Coastal Policy.
The minister’s media release on 6 May said:
Minister for Parks and the Environment Nick Duigan said that the government received advice in March regarding the application of the State Coastal Policy.
This is entirely the government’s advice and it is to release to the public, to release to all those hundreds of people that are emailing us with their submissions, the advice and clear it up and give it to this House so we can have an informed debate about the validation bill when it comes before this House.
Before the minister gets up and claims that they cannot release this information, it is really important that we understand what can happen when it comes to legal privilege and this kind of advice, because there is some very clear information that was published by the Attorney‑General when it comes to guidelines for the disclosure of communications protected by legal privilege. The Crown is entitled to claim legal privilege and keep things confidential. The privilege resides in the Crown and not an agency. We are not asking information from an agency or officer to whom it is given.
The custodian of the privilege is the Attorney‑General. The privilege can only be waived with the express written permission of the Attorney‑General, so before anyone gets up and says this is privileged information and cannot be released, no-one can see this because it is legal and has client-lawyer privilege, the Attorney‑General, Mr Barnett, can absolutely release this information. If this government is asking this House to take such unprecedented action as to retrospectively validate a whole raft of approvals, including one of the most destructive and largest industrial developments on the table at the moment, the very least they can do is put this information on the table. They can at least give this information to the parliament so that we can see exactly what the advice entails and what the implications of it are.
Unless that happens you are really just asking us to trust you. ‘Trust us, pass this legislation so that this great big internationally owned wind farm can be approved and don’t worry about a thing. Don’t you worry about that.’. That has hallmarks of an attitude that we do not want to see in this parliament and that was evidenced also by the previous debate.
Civil society has been clear since day one. They have been running to the minister requesting this kind of information and if not the advice, they have at least been asking for a summary of the reasons. The Australian Coastal Society was one such civil society group that has been writing to the minister asking for this information. Dr Eric Waller and Chris Rees are both eminent coastal experts. Eric has an OAM and a PhD and Chris Rees was a government official who oversaw the drafting and management of the coastal policy. They write:
We continue to rely on your media statement of 6 May and subsequent media articles as our principal sources of information on this questionable course of action that the government appears to have chosen. With the limited quantum of information in the public domain, you will no doubt be aware that a number of interested stakeholders, including ourselves, have submitted multiple right to information applications to ensure that adequate information is available to both the broader community and parliamentary decision-makers. I am not aware of any right to information applications bearing any fruit. I am not aware of any of this information being released. It is very clear that we still have a situation where the community remains in the dark and we, as parliamentarians, are also in the dark. We are all having to rely on a ‘trust us’ commitment from this government that the extreme and unprecedented action that is going to be taken is required. I will quote from the Aboriginal Land Council of Tasmania in a media release from a week or so ago, dated 25 July:
While the government claims there is coastal infrastructure requiring retrospective approval through these amendments; however, not one example of the Robins Island Wind Farm has been offered to the public. Ms Digney stated that the Tasmanian coastal policy currently prevents any development that would impact our mobile sand dunes. The Tasmanian Aboriginal community has a special interest in coastal dune systems because it is widely known that such dune systems often contain Aboriginal burial sites and other significant Aboriginal heritage values.
These requests have been made publicly and have been studiously ignored. Similarly, we have come into this place and asked the minister directly, as we did this morning, whether he would release the advice. He has dodged it and evaded it. Similarly, in the other place, Cassy O’Connor MLC, has had direct access to the minister, asked these questions, and had them dodged and evaded answers.
I point out something that many people may have noticed while walking around Parliament House over the last couple of days. There are a range of new signs promoting the values of Parliament; respect, treating people with dignity and courtesy, integrity and honesty, transparency, empowerment, enabling people to take ownership of work, and collaboration, valuing each other and working together. I find this situation remarkable, that this House is being asked to pass legislation simply based on the say-so of this government. It flies in the face of all of those values: respect, integrity, empowerment, and collaboration. It is an insult to the broader community that is currently being consulted over this legislation, who have no justification or evidence from the government presented to comment on regarding the validation bill that has been put on the table.
The government is coming into this place asking us to take extreme action, such as granting retrospective approval for development that, at face value, should be rejected. That is what they are asking us to do. At face value, this development should be rejected, yet we are being asked to validate it. This legislation would completely remove the grounds for appeal against the minister’s own Environmental Protection Authority, one of the few times the EPA has stood up and done its job, and now the government is going to pull the rug out from under it. There is no justification for the motion.
On dot point six there might be some complaints about the timing of this. We want this information delivered at least 24 hours before the consultation period for this bill expires. That expires at 5:00 p.m. tomorrow. However, we have written this motion in such a way that if it takes some time to get this information, there is capacity, as would be appropriate, to extend the consultation period. This would allow the public to have access to this information and have at least a day to update or amend their submissions based on the information. There is no evidence to support the claim that this is a threat to the way of life in Tasmania and coastal infrastructure. This is hyperbole from the government regarding this legislation and the move they are taking. It is very clear that this action is being taken at the behest of an international corporation for the benefit of development on a sensitive landscape. It is not politically crafted; it is drafted so that all members, irrespective of their position on Robbins Island, can support it if they support transparency. It is deliberately written in that way. It is a very straight-back motion and it is eminently supportable by all members.
I want to conclude in the minute or so that I have left and acknowledge the work of a whole raft of different community groups who have been encouraging submissions and holding public meetings: the Planning Matters Alliance of Tasmania; Environment Tasmania; the Australian Coastal Society which I mentioned earlier; the Tasmanian Conservation Trust; the Aboriginal Land Council of Tasmania; and the Tasmanian Aboriginal Centre. They have all had an important role in promoting the issue and supporting our coastal policy that, in the minister’s own words, has served us well, and encouraging people to engage in their democratic process.
To finish off, I want to read out one submission from a Flinders Island resident because this could have implications for coastal communities all around the state, and if people care about their coasts, they should be deeply concerned about this legislation that is coming up.
My name is Jude Cazaly. I am writing this from Flinders Island where I have lived for 23 years and had land since 1997 when I would come and stay every year. The essential feature of the Furneaux Group of islands is its coastline. The coast is one of the defining features of Tasmania/lutruwita. I support the concerns expressed in the many planning submissions you are receiving. These are listed below.
These are people who deeply love their coastline and who have seen it protected for many years. That coastal policy that has served us well has protected the coast and given us the asset that we have today, and all that could be undermined for Robbins Island when it comes to this legislation, but undermined across the board if the coastal policy is changed.
Time expired.
[5.28pm]
Mr BAYLEY (Clark) – Thank you to all members for their contributions. I appreciate the debate. I have to say there is nothing I have heard in the Chamber here today that dissuades me from the importance of this motion and the importance of the release of the information.
The minister said that the government does not release its advice, but just to be 100 per cent clear about that: as a minister, that is because you choose not to. There is nothing that precludes you from doing that and, again, you are asking the Tasmanian community and every member in this House to trust you on this issue whereby you are bringing forward legislation that will approve a huge industrial development. There is no evidence on the table whatsoever that it impacts on anyone else or anything else.
The minister also made the comment that the Robbins Island wind farm needs to stand on its own merits. That is demonstrably false, because this legislation will prop it up. It does not stand on its own merits. It gets propped up by this legislation, because the concerns of the EPA and the concerns that the State Coastal Policy had not been properly considered and, therefore, that TASCAT erred in law in its assessment, will not be tested by the court, because your action will pull the rug out from under the feet of that challenge.
I do not accept that this means that the Robbins Island Farm wind farm will stand on its own merits, because you are propping it up artificially by virtue of this validation and this legislation that removes doubt. It is a special deal for what looks like a special mate, given the text messages that were released by the ABC this week whereby the minister is directly texting and directly well-wishing a multinational company the night before the case.
I will seek a briefing. Thank you, minister, for the offer. We will certainly be asking for the reasons. If you cannot release the advice, we will certainly expect that the reasons that are contained within that advice are explained and unpacked. We will certainly do that, but it feels condescending to have the minister tell us that it is important for the member to understand that all infrastructure could be affected.
We do not understand what could and could not be affected, and that is the whole point of this motion. Despite this issue being on the table now for several months, despite repeated requests from civil society and despite repeated requests from multiple members in this place and upstairs, you have refused to release the advice. You have refused to release a summary of the advice. You have refused to release the reasons that are summed up in that advice, and that is simply not good enough.
Again, you are asking us – on trust – to pass legislation that has significant implications for one multinational company and significant implications for those members of the Tasmanian community who care significantly about our coastlines and about Robbins Island.
I finish where I started, minister, by flagging that Robbins Island is not just some flat island off the north‑west of Tasmania. It is a significant historical, cultural and natural asset for this state, and we are obliged to protect it. The coastal policy is something that has long applied to protect it.
Ms Finlay – It is a piece of private land.
Mr BAYLEY – It is part private land, Ms Finlay. It also has a coastal area and then when it comes to this wharf, it is extending 500 metres into a coastal area that the member for Braddon has flagged could be an important Ramsar area. Thank you.
