Ms O’CONNOR (Hobart)(by leave) – Mr President, I move –
That the Validation State Coastal Policy Bill 2024 be referred to Government Administration Committee B for consideration and report.
I am hoping that a number of my colleagues will support this referral because, despite a full day of briefings around this validation bill, the government still has not established the evidence base for its necessity; it certainly has not been able to argue that this is an urgent bill. When we are told it is an urgent bill, we should be asking ourselves, urgent to whom? Urgent to the government, yes, and certainly urgent to the Robbins Island wind farm proponent in the context of the EPA’s joining of the Supreme Court matters.
We have not had any legal advice provided to us. This legal advice continues to be cited. It is well within the Attorney‑General’s authority to make the Solicitor‑General’s advice available or to provide to members a summary of that advice so we can look at it and make an informed decision about this legislation.
Similarly, we have not been provided with any kind of list of coastal infrastructure or assets that may be at risk of a retrospective challenge to their validity, so members are being asked to pass a retrospective validation bill on government promises, on manipulative language like ‘protecting the Tasmanian way of life’. Having a wharf attached to Robbins Island to service a massive wind farm is not protecting the Tasmanian way of life. That is gaslighting, dishonest language. The Tasmanian way of life in relation to our coast means being able to enjoy its beauty, naturalness and serenity. It is being able to feel equal on our coast, because it belongs to everyone and it belongs to no-one. It is manipulative and dishonest to say this is about protecting the Tasmanian way of life.
This is about the Robbins Island windfarm project. The Circular Head council failed to take into account the State Coastal Policy, and TASCAT upheld the Circular Head council’s failure. The matter is now before the Supreme Court, with two separate groups joining that action. I think we should not allow ourselves to be duped by government into supporting this legislation without fully examining the rationale behind it.
We have suspended debate on the state budget. It is a pretty big thing to do for a validation bill that works to the interests of a single private developer. We keep being told that this is urgent, and yet to my mind neither the minister, who was in the briefing today, nor any of the officials who briefed us, made the case for urgency. All of that infrastructure built on the coast going back to 2003 has apparently not been a problem until the Robbins Island wind farm proponent had a problem with the State Coastal Policy.
There is no rush here. We have a project that is before the Supreme Court. There has been no decision from the Commonwealth Government on the referral under the Environment Protection and Biodiversity Conservation Act because of the myriad of threatened and endangered species that either migrate to or are regulars at Robbins Island. We also have a recommendation from the State of the Environment Report of 2020 that we, parliament and government, review and update the State Coastal Policy, but what we are being offered here is a piecemeal approach.
The discussion paper that has been put out by the Department of Premier and Cabinet only looks at outcomes 1.4.1 and 1.4.2.(both ok per State Coastal Policy) It only looks at the question of actively mobile landforms. There has been nothing presented to us that indicates this government is serious about updating the State Coastal Policy more broadly, as it should. We should acknowledge, as people who enjoy this beautiful island, that the State Coastal Policy has in fact served us very well over the 28 years it has been operational.
I grew up in south‑east Queensland. They obviously did not have anything like the State Coastal Policy there. They have canal estates and massive infrastructure on the coast, all of which is now made vulnerable by the risk of climate change, sea‑level rise, coastal inundation and erosion. I am not asking members to listen just to me on this. I am asking them to reflect back on the briefing that we had yesterday with the two legal academics from the University of Tasmania, Ms Anja Hilkemeijer and professor Jan McDonald.(both ok)
It was compelling testimony from two independent, highly informed academics from a trusted institution at UTAS. Professor McDonald told us that the explanation from government alludes to legal advice nobody has seen, and we need to see it. She encouraged members to work through the legal ramifications before we pass this bill and she said, as a matter of democratic process, we are not being given evidence of need for the bill.
She makes the point, as an expert in this area, that local councils over the years have very cautiously applied the State Coastal Policy and made very conservative planning decisions around development on the coast. She says in the absence of a compelling urgency, we should hold off to do a thorough review of the State Coastal Policy. Earlier, in the submission that they presented to the draft legislation, they said:
Regardless of how the policy might be applied and strengthened in future, it is inappropriate to pre‑empt the Supreme Court’s determination of the legality of the approval by retrospectively suspending part of the coastal policy. The fact that the EPA may have made a mistake in failing to fully consider the application of the policy to the proposed proposal to build a wharf in Back Banks Dune is not a reason to retrospectively suspend part of the policy. (tbc)
They say, and this is very important:
As part of the system of checks and balances inherent in Tasmania’s separation of powers, it is the role of the Supreme Court of Tasmania to determine whether the decision of TASCAT should stand and, if required, make appropriate orders to correct errors in the application of the law.
The oversight provided by the Supreme Court, after considering the submissions of all parties, means that the system of checks and balances is working as it is designed to do to ensure that there is independent, expert oversight of administrative decision‑making.
They also raise issues with the government’s claims:
The Tasmanian government’s explanation of this bill is that parliament should pre‑empt the Supreme Court’s decision and retrospectively remove the operation of outcome 1.4 of the State Coastal Policy because of uncertainty as to the scope of its application.
The government points to two things as evidence of that uncertainty. First, that outcome 1.4 in the policy does not include a definitive description of actively mobile landforms, and second, that there is no accepted map of those landforms.
Turning to the first of these, it is important to note that uncertainty always exists within the law, and that it is the role of the courts to construe terms in legislation. Furthermore, it is questionable whether outcome 1.4 actually suffers from such uncertainty.
The wording of outcome 1.4 alone and/or together with relevant extrinsic material provides a sufficiently clear description of actively mobile landforms. Indeed, for the purposes of the proposed wharf at Back Banks Dune, outcome 1.4.2 expressly refers to frontal dunes as an example of an actively mobile landform.
The claim that uncertainty in 1.4.2 arises because there is no accepted map of actively mobile landforms is also not persuasive. That is because extensive mapping of hazardous coastal areas in Tasmania already exists.
This was made clear in our briefing today. I might point out that a lot of that really important work started under the Labor-Greens government. We also sought in 2011-12 to update the coastal policy and develop a coastal management and planning framework that was much more integrated, with plain English language, and that would have served this state well had we been able to proceed with it.
Here is the kicker in the UTAS submission:
Retrospective suspension of the State Coastal Policy undermines the rule of law. This bill would retrospectively remove the application of outcome 1.4.2, meaning that the building of the proposed wharf would be lawful even if that approval was unlawful at the time of the council and TASCAT’s decisions.
This is the last sentence I want to read from this submission, and it should give us all pause:
Suspension of or dispensing with the law has always been a favoured power of arbitrary rulers.
We are being asked here today to suspend the budget to do a special bill for a single proponent. I do not think we should buy the argument that there is a whole lot of uncertainty now over coastal infrastructure that was presumably approved, lawfully and in good faith, by, invariably, local government planning authorities. I do not think we should buy that. I do not think we should buy that this is about protecting the Tasmanian way of life. It is not. It is about making sure that a foreign, multinational corporation can build its wharf at Robbins Island.
We are being asked to consider this allegedly urgent bill before the Commonwealth has made its decision under the EPBC Act, and it should be an easy decision for minister Plibersek, given the array of threatened and endangered species there – recognised by the Environment Protection Authority when they put a five‑month turbine prohibition on the original permit granted by the Circular Head Council.
We have not had any word from the Commonwealth. There are two matters before the Supreme Court. The State of the Environment Report says rewrite, update and modernise the State Coastal Policy. We are being asked to pass this bill in the absence of any clear legal foundation or evidence that there is a problem for anyone other than the Robbins Island wind farm proponent.
It is highly troubling and I ask members to think about this. We should not allow ourselves to be taken for fools. We have an excellent inquisitorial committee system that could further explore this issue, not in a rushed morning of briefings like this morning. I left with questions in my head. People in this room left those briefings still unclear. We should not pass legislation where there are so many outstanding questions. We should not allow ourselves to be tricked and manipulated. This is not an urgent bill.
If the government wants the Council to pass this bill today, lay the Solicitor-General’s advice on the table. Give us the list of assets at risk. Be honest with us about what this bill is about. If the government was being honest about it, this would be called the ‘Robbins Island Windfarm Project Wharf Facilitation’ bill. That is what it would be called because that is exactly what it is.
In the short time I have been here, I have been so impressed by the rigour that my colleagues apply to big questions of legislation and policy. We are not a council that lets the wool be pulled over its eyes. We should not allow that to happen to us today, which is why I hope that the Council, by majority, will allow Administration Committee B to examine the rationale behind this bill, the evidence supporting it and get some clarity from the government about what this bill is all about.
I urge members to support this referral.
