Ms O’CONNOR (Hobart) – Mr President, I move –
That the Validation (State Coastal Policy) Bill 2024 (No. 37) be referred to Government Administration Committee B for consideration and report.
I will succinctly make the case for the Council to present this flawed legislation for committee examination so that there can be a genuine exploration of the foundations of this legislation. But, the fact is the situation is no different today from what it was when the government sought to disrupt the budget, to jam it through this place.
We still have not seen the legal advice which the government refers to as the foundation for developing this bill. We know that it is completely within the Attorney‑General’s capacity to allow members to not only see, but to have, a copy of the Solicitor-General’s advice. In fact, we were provided with the Solicitor-General’s advice to support debate on the Judicial Commissions bill yesterday. It is possible. There has been a choice made by government not to properly inform members about the legal arguments that underpin this bill, legal arguments which have been effectively demolished by a number of key stakeholders, including very esteemed UTAS law professors.
We have not seen any list or had any indication of what coastal assets and structures need to be retrospectively validated. We are being asked to take this legislation on trust. The Greens believe it is no coincidence that government developed and brought forward this bill pretending it was to protect our way of life – they used those words – after the political Robbins Island Wharf approval was challenged in the Supreme Court.
It is a most cynical claim. Even yesterday in the briefing that we had with Dr Rachel Baird, she confirmed that in her view this legislation was to validate the development, and the development that Dr Baird was referring to, of course, was the 500 metre wharf across the Back Banks onto Robbins Island.
We also have the submissions that were presented by esteemed UTAS Professors Jan McDonald, Anja Hilkemeijer, Dr Emille Boulot, and Ms Cleo Hansen-Lohrey that say to support this bill is to undermine the rule of law, and this is a quote from their submission to government.
Retrospective suspension of the State Coastal Policy undermines the rule of law. The Validation (State Coastal Policy) Bill 2024 would retrospectively remove the application of the State Coastal Policy outcome 1.4.2. This would mean that the building of the proposed wharf in the Back Banks dune system will be lawful even if that approval was unlawful at the time of the Council and TASCAT’s decisions.
The submission goes on:
Suspension of, or dispensing with the law, has always been a favoured power of arbitrary rulers. As long ago as 1688, when the English Bill of Rights was enacted, the Crown has been prohibited from suspending the law. That is because suspending the operation of a law undermines public confidence in the rule of law, namely that the law applies equally to everyone regardless of wealth, status, or special relationships.
There is a strong perception amongst the community that the bill is brought forward at this time to assure an individual developer that, regardless of the outcome of the judicial review proceedings currently before the court, the building of the proposed wharf at Back Banks dunes can proceed unimpeded by legal requirements.
When I asked the question of Dr Rachel Baird yesterday on the basis of this statement about whether, in her view, it was a subversion or an undermining of the rule of law, her response was to describe that as a political question. It is unarguably not a question of politics. It is about legislation that would effectively remove the grounds for a matter that is before the Supreme Court. That is not a political issue; that is a legal probity issue that we should be very mindful of as we go forward today. It is a very odd response from Dr Baird. In our view, this bill is being brought forward to make that Supreme Court case go away.
Dr Baird also confirmed, however, that there is a very unlikely prospect that any existing structure on the coast on actively mobile landforms would be challenged, and it is our proposition here that the odds of any challenge to an existing structure on a coastal mobile landform – moving coast – are pretty close to zero. What we do know is that there is a Supreme Court case afoot. It needs to be allowed to proceed properly.
There is a local community working hard to save pilitika/Robbins Island and its birds from a hugely impactful industrial wind farm development, and the fact is that the EPA is also before the Supreme Court because they failed to remind the proponent and planning bodies of the need to comply with the State Coastal Policy.
In closing, there are two separate issues here. There is the validity of existing approved developments on actively mobile coastal landforms – that is, moving coastline, like dunes – and that may very well be a legitimate legal issue, if only we could see the legal advice the government tells us confirms this. But we could retrospectively validate to remove any legal uncertainty over wharves or other structures built on moving coastline and remove the Robbins Island wharf proposal from this bill.
If the real issue here was a validity question, then Robbins Island would be excluded from the provisions of this bill, because it is a very different thing. We have existing approved structures, and we have something that has not been built yet but has been approved under a flawed process, and these two things are being conflated by the government to mislead us and, more importantly, to mislead Tasmanians into believing there is actual legal risk to existing structures on mobile coastline.
I hope members have taken the opportunity to look at the video sent to all of us by Mr Grant Dixon, an earth scientist who has worked on issues relating to geo-conservation and land management for around 30 years, the author of numerous papers, articles and reports on earth science and nature conservation. It is a short video, but it makes it very clear that the government’s claims – the claims that have been made to us that Back Banks mobile landforms are confined to a certain area that is not relevant to the wharf approval – are not to be believed. I strongly encourage members to look at Grant Dixon’s video, because he says – it is really clear – ‘actively mobile landforms on the east coast of Robbins Island are far more extensive than the map presented by the State Planning Office suggests’.
There is a community – and it is not just the local community, though they have worked so hard – it is a statewide community that is working hard to defend that beautiful wild island, the life it sustains and its resident and migratory shore birds.
Pilitika/Robbins Island belongs to the palawa people. It belongs to the birds. It is the wrong place for a windfarm.
That said, the government has not established the need for this bill. A committee could examine these questions thoroughly. It could probably report after the Supreme Court matters are dealt with. Then, we could be sure we are standing on solid legislative ground – not on sand, which this flawed bill is built on. I ask members to support the motion.
