Mr BAYLEY (Clark) – Honourable Speaker, I rise to talk about this validation bill and will say up front that we are not supportive of it. We believe this is both a travesty and a perversion of proper process. Unlike the claim by the member who just took his seat, this is motivated by the commercial interests of a single private multinational corporation and their desire to use public land and water. This preempts a Supreme Court case and so contravenes the principle of separation of powers. It undermines the legal case that is before the Supreme Court of this government’s own Environmental Protection Authority and it treats the community with utter contempt.
Despite numerous requests, this government has given no examples of the specific projects that are captured by this policy confusion. There has been no legal advice released despite numerous requests, both inside this House and publicly by members of the community. There has been overwhelming opposition in the consultation process with really substantive issues raised by very knowledgeable people in the coastal protection, legal and planning spaces. Despite this, the bill is before us and there has been no change from the draft that was tabled a few months ago. In fact, the only change is to extend the validation process. People should see this for what it is: overreach by government to assist a private commercial developer at the expense of a longstanding process that seeks to balance environmental protection and sustainable development.
The minister, even in his communications to stakeholders about this very issue, communicated that:
The State Coastal Policy is a critically important part of Tasmania’s resource management and planning system and it has served us well in protecting the coast and providing for sustainable development.
If the minister believes it has served us well for so long in providing for sustainable development and protecting values, what is the problem? That was a letter to the Australian Coastal Society.
I note from the debate today that the leader of government business is prosecuting this bill in this House instead of the Premier, who is the responsible minister and whose name is on the Second Reading speech. I ask the minister why that is when he comes to sum up. I can only assume it is because of the deep community controversy about this bill and the fact that, presumably, even in Braddon it is a deeply unpopular move.
I acknowledge the work of the community and community groups who have helped inform us as members and the broader community about this policy and the challenges with it, some of whom are in the public gallery today. I thank everyone who made a submission to this process. I understand that it must feel like an increasingly futile exercise to engage in public consultation put out by this government, but people persist, as they should. It is important. I thank the groups who have engaged strongly in the public debate and this process: Planning Matters, Alliance Tasmania, the Tasmanian Conservation Trust, the Australian Coastal Society, Environment Tasmania, the Aboriginal Land Council of Tasmania and the Circular Head Coastal Awareness Network, amongst others.
Between them they have repeatedly, both privately and publicly, called on the minister to be transparent and release the legal and other advice that was being relied on. They have publicly raised concerns about the bill. They have convened and participated in a raft of public meetings around the state that discussed this issue with the community in Kingston, South Arm, Bicheno, St Helens and Wynyard – all full-house meetings, as I understand. They encouraged public submissions and made their own submissions. They analysed the public submissions to demonstrate that 97 per cent oppose this bill. They communicated with all of us directly to give us very sound arguments as to why this bill and its context are unsubstantiated. I thank you for all the very good work that you do. Irrespective of the outcome today, you have demonstrated that this bill is unnecessary overreach, legally problematic, and widely opposed. Thanks to the hundreds of people who have emailed us with concerns and made submissions.
I acknowledge the palawa people and the fact that pilitika/Robbins Island is an incredibly important Aboriginal cultural landscape. It has a history of over 40,000 years as a meeting place of Aboriginal tribes. It is a place that is very rich in resources: seafood, seals, marsupials and more. To the palawa community and elders, past and present, I acknowledge your opposition to this bill as articulated by the Aboriginal Land Council.
Coastlines, no matter where they are around Tasmania, hold a profound importance to palawa people because they continue to bear evidence of ancestral occupation. Coastal caves bear art, dune systems display middens or living places and the coastal strip has hut depressions and seal hides. Robbins Island is no exception.
Rebecca Digney from the Aboriginal Land Council writes that:
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.
They have archaeological values, they are site-based values, stones and bones values. Pilitika is a significant Aboriginal cultural landscape, meaning the whole area has significance from an Aboriginal perspective. This process highlights the travesty that is the treatment of Aboriginal people by this government and their disdain and disregard for their views.
This bill has been just five months in the making since the government first realised there was a problem with the approval of the wind farm on Robbins Island. Here we are, debating a bill that was brought to public debate at the first opportunity.
On Aboriginal heritage protection, we have raised with the minister numerous times that it is over three years – over three years, Speaker – since the minister tabled a review of the Aboriginal Heritage Act in this House that recognised that Aboriginal heritage protection laws simply do not work. In July 2021, a tabling report that we received in this House said:
The review has confirmed that the government’s long‑standing position on the act is considerably out of date and that new legislation is required that expands the scope of the act beyond being mainly focused on mitigating the impacts of physical activities on Aboriginal heritage of archaeological significance.
It is clear that the act, itself, does not provide effective mechanisms for protection, nor does it adequately consider the significance of Aboriginal heritage in the context of Aboriginal culture. The entire Robbins Island development, which is a massive industrialisation of an Aboriginal cultural landscape, has been assessed against this flawed act that the government acknowledges does not work and it wilfully delays the introduction of a new one. It has taken five months to change the State Coastal Policy and validate and change things – suspend the law so that Robbins Island can be approved. It is over three years of inaction on Aboriginal heritage and that is a true shame.
Robbins Island is also an incredibly important natural landscape. It is a disease‑free home for Tasmanian devils. It is the route of migratory parrots. It is surrounded by rich marine ecosystems and tidal flats that harbour shorebirds that fly from the other ends of the earth. It is truly a remarkable place.
The consultation process for which we are now debating a bill has been problematic. A draft was released and opened for consultation on 16 July. Two weeks later, on 1 August, comment closed and six days later – only three business days – the bill was tabled in this House. It demonstrates that there was never any intention to listen to the community properly. The only change, as I mentioned before, despite all of those submissions from different people raising considerable concerns is to extend the validation period back to 16 April 2003.
How many submissions were received? There were 402 and, thanks to the Tasmanian Conservation Trust, we have an analysis that 0.8 per cent of submissions supported it, of which one was a sub‑member of one of the submitters. In all, 96.8 per cent of people were opposed and 2.5 per cent either had qualified support or were neutral. This included 19 community groups and organisations, so unequivocal opposition to this bill from the community. That cannot be denied and yet the only change we had was to extend the validation period. I want to ask the minister upfront, whose submission is number 383? There is one submission that is listed on the website as anonymous and it would be interesting for us to know who that is and why that has been withheld. You may not know, minister, because you are not the minister responsible, nonetheless, I seek advice from you on that.
There has been significant effort from the community. Compelling arguments have been raised and this, coupled with the early repeated and loud calls for government to substantiate the proposal to release legal advice, to give legal reasons, to provide evidence of legal developments that are caught up in this, none of that has been forthcoming. We have had hundreds and hundreds of emails and this government has treated the community like fools. It had no intention to take on their views. It is spinning the need for this as some kind of community service. That it is about ‘signs in coastal areas to stop people walking on penguin nests or to keep cattle off penguin burrows’, but we know what sits behind this is the approval of a massive private commercial development.
The minister responsible – he is not even the minister responsible – Mr Duigan, who has been leading the charge on this, even had the audacity to suggest that this was about protecting Tasmania’s way of life: ‘The government will always support Tasmania’s life’. That is in his 6 May media release launching this attack. I say that is an absolute crock. This is not about protecting the way of life, this is about facilitating the development of a private multinational corporation.
What is the greatest risk to Tasmania’s way of life is climate change. Sea‑level rise, more frequent extreme storm events, and coastal inundation. Weakening the protections for coastal areas is a significant backwards step in the face of that. I read a quote from the Environmental Defenders Office’s submission to this bill, which articulates this well:
Given the real and looming impacts of sea level rise, coastal inundation and flooding arising from climate change, EDO rejects any suggestion that the safe State Coastal Policy needs further amendment to potentially weaken the level of protection of Lutruwita Tasmania’s vulnerable coastlines and communities.
There was a profound submission made to the process by four University of Tasmania law academics:
The implementation of strong coastal protection planning controls is more important now than ever. Climate change will have a profound impact on Tasmania’s coastal zone. Sea level rise will inundate coastal areas and accelerate coastal erosion. Many parts of Tasmania have significant exposure to coastal climate hazards due to legacy development in vulnerable coastal areas. These areas will require costly interventions in the future. Either retreat from or adapt to erosion and inundation. In light of these unavoidable hazards, it is essential that we minimise the creation of new risks and minimising new risks is an essential adaption strategy. This means avoiding new development in exposed areas. Far from exempting development from the application of the State Coastal Policy, the government should be strengthening both the detail and application of the policy.
On that, I finish in terms of environment and climate change. I raise the issue that the State of the Environment report handed to the relevant minister numerous weeks ago has yet to be tabled in this House. That is a report that should give us some information about the performance of this government, potentially in the performance of this policy, and yet it continues to be withheld from release. The suspension of the state Coastal Policy to support a single massive developer in the face of climate change is a is a serious backward step.
As I mentioned before, there is a live court case that demonstrates that no assessment was undertaken against the State Coastal Policy. No assessment was undertaken against 1.4.2. in the State Coastal Policy and the EPA on advice came to that realisation. I read from the director, Wes Ford, from an RTI on advice to his board. He says,
My advice to the Supreme Court must be precise in that we have erred in law in that we did not consider the wharf against the State Coastal Policy.
And in his affidavit to the court, he goes on to say,
The DMP addressed aspects of the State Coastal Policy, however, it did not refer to clause 1.4. The Board considered and assessed the development proposal in accordance with section 25 of EMCA. However, it did not consider the application of the State Coastal Policy except to the extent that it was addressed in the DPEMP. The Board did not consider the possible relevance of clause 1.4 of the State Coastal Policy. As far as I am aware, no member of the board was aware of the issue. I advised the Board that I had formed the view that the Board and the council had failed to comply with clause 1.4 of the State Coastal Policy and further, that the tribunal had erred in its decision in relation to the permit and effect of clause 1.4 in respect of the proposed and of the proposal and in directing the council to permit the development of the wharf on an actively mobile landform.
There is a hole here. If we pass this legislation, there is a hole in the Robbins Island development in that the EPA did not assess the wharf development against the State Coastal Policy, yet we are going to validate it irrespectively. That means we will issue a permit for that no matter what happens and there will not be an assessment against the State Coastal Policy. The EPA obviously joined the appeal in the Supreme Court and that case is now active. Accordingly, and this is from the EPA director’s affidavit:
Accordingly, on 14 March 2024, I formed the view on behalf of the Board that it was necessary and appropriate to bring this issue to the attention of the Supreme Court and that this should be done by filing an appeal of the tribunal’s decision.
The case remains live, Speaker. Hearings are set down for November, as I understand. Yet, here we are in this place – the ultimate law-making Chamber in the state – and we are going to pull the carpet out from the under the feet of the EPA and intervene in a live case that is underway.
The wharf is absolutely through a frontal dune system – the Back Banks Dune. This is a spectacular 10‑kilometre long beach and dune system, and the proposal would have a significant impact. It is to bulldoze a 50 metre wide corridor through the dune. It is to build a 500 metre long wharf across public land and out into coastal waters, and there is to be a 500 metre long ramp connecting the road to the wharf. This involves the excavation of roughly 150,000 tonnes of sand.
It is a huge industrial development on what is currently a pristine, untouched dune system. No assessment has been done as part of the Environmental Protection Authority (EPA) assessment; none has been done as part of this bill. Retrospective approval will approve it with no assessment of any impacts and risks at a time, as evidenced before, of climate change and climate chaos. The bill completely strips the ground out from underneath the EPA.
Many of the submissions that we received state, and I agree, that the case has not been made for the retrospective suspension of the State Coastal Policy. It sets a dangerous precedence regarding the separation of powers. Advice was not released, examples were not given and the only case for this bill writ large is the approval of the wind farm.
As the Tasmanian Conservation Trust puts it in its submission:
The government says that the way the State Coastal Policy has been applied comes under question, but what are those questions? How and what are the questions? ‘Trust us’, this government says, and take this unprecedented step. It throws into question the separation of powers of the government and the judiciary.
A member – You are not allowed to do that.
Ms Finlay – A stranger on the floor.
The SPEAKER – It is not their fault that they do not know. You, as members of parliament, are responsible to ensure that your staff know the rules. A few more steps and you would have been rugby tackled and removed from the premises.
Mr BAYLEY – It throws into question the separation of powers – the separation of government and the judiciary.
I mention again the submission from UTAS academics, and I read directly from it:
Regardless of how the policy might be applied and strengthened in the future, it is inappropriate to pre‑empt the Supreme Court’s determination of the legality of the approval by retrospectively suspending parts of the coastal policy. The fact that the EPA may have made a mistake in failing to fully consider the application of the State Coastal Policy to the proposal to build a wharf on Back Banks Dune is not a reason to retrospectively suspend parts of the policy. 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 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, to ensure that there is independent expert oversight of administrative decision‑making.
This is four legal lecturers from the University of Tasmania highlighting a significant concern that should alarm us all. At this point I flag that I intend to move a motion to adjourn this debate until tomorrow – tomorrow being at least until the conclusion of the Supreme Court challenge, but I will get to that in the future.
There is no need to rush this. What is the rush when it comes to the Robbins Island development? There is still an Environmental Protection and Biodiversity Conservation Act 1999 (EPBC) assessment – a federal assessment that has time to play out. There is still time for the court case to play out: for arguments to be prosecuted, the case to be heard, a determination to be made by the Supreme Court and for us, if needed, to act with the knowledge of that Supreme Court determination.
We know that this is about the Robbins Island development. The minister, the leader of government, did a very good job of articulating, on behalf of the Premier, a Second Reading speech that failed to mention Robbins Island once, despite the fact that this has been all along a significant trigger for this kind of action. The fact sheet that was published as part of this development says:
Tasmania has numerous developments that might be on actively mobile landforms, which provide access, recreation and help conserve areas of fragile environment. These range from boardwalks through the dunes, fencing, lookouts, boat launching facilities, bridges, jetties and even golf courses.
If this bill automatically approves something that’s assessment or approval was questionable in the first place, it begs the question: who is liable if something goes wrong? If, by the leader of the government’s argument, we need this bill so that these kinds of developments can be approved, it begs the question: who is liable if something goes wrong? The Environmental Defenders Office (EDO) addressed this in their submission:
EDO is concerned that the proposed validation of permits under the bill may endorse permits for development on actively mobile landforms that were never properly assessed in planning authorities or implemented by developers.
This may have unintended negative consequences for lutruwita/Tasmania’s coasts and communities, potentially exposing them to harm or impacts from developments that should never have been built.
A correlated issue is that where developments have been built on these actively mobile landforms and result in some harm or loss to life, property or the environment, it is unclear who will be held liable for the remediation or mitigation of those harms.
Will it be the councils that erroneously approved the permits for the developments? The developers? Or will the Tasmanian government ultimately pick up the tab for those losses given that, through the bill, it proposes to ‘validate’ the permits?
The argument has been made that there has been no mapping, and I quote from the fact sheet:
The State Coastal Policy does not provide a definitive description of an actively mobile land form or any accepted map of their location.
This is unconditionally rejected by the law academics from UTAS. 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. According to the government’s Coastal Hazards Fact Sheet, the Coastal Erosion Hazard Code and the Coastal Inundation Hazard Code exist to ensure compliance with 1.4.2. of the State Coastal Policy. Both codes contain provisions and mapping – that is, overlays – that control the use and development within hazard bands.
According to the fact sheet, the coastal hazards were mapped as part of the mitigating natural hazards through the land use planning project undertaken by the Department of Premier and Cabinet’s (DPAC) Office of Security and Emergency Management.
The list database also provides access to coastal inundation and coastal erosion hazard bands. There is clearly mapping, and many a development has had to consider the mapping and evidence that is in the list. The coastal erosions hazard band – all of the immediate coastline surrounding the Back Banks dune – is mapped as being at high risk of coastal erosion by 2050.
The coastal erosion hazard band – the inner coastline of Back Banks dune – is mapped as being of medium risk to coastal erosion by 2050. There are geomorphic polygons; there is coastal vulnerability and soft sediment landforms. There are a range of different maps. The coastal hazard bands layer in the corresponding coastal hazards technical report is the key here. This is a report written by DPAC that explicitly states over and over that the correct interpretation of outcome 1.4.2. is that development is not permitted except for engineering remediation works to protect land and human life.
We are doing this all backwards. We will do the bill first and we will change the policy next. There was a hastily uploaded discussion paper about the proposed changes to the State Coastal Policy that was uploaded yesterday and it has the immediate effect of amending the State Coastal Policy via section 12 – that is the proposition – of the State Policies and Projects Act. That effectively allows the government to go to the Governor and argue that there be an interim state policy that considers the changes that the government proposes to consider and to take forward.
There are several issues with this approach. If this parliament rejects the validation bill, then the interim state policy still allows for the Robbins Island wind farm and any other developments that should not go ahead to be approved ahead of consideration of the actual State Coastal Policy.
Even if the Tasmanian Planning Commission ultimately rejects any proposed changes to the State Coastal Policy, the interim state policy will allow time for the approval of other developments that should not be approved. A case in point here, potentially, is another one of ACEN’s wind farms in the north-east of Tasmania which similarly has a wharf development heading across a frontal dune system, across public land at the beach and into coastal waters.
Honourable Speaker, I come to the proposition to adjourn the debate until tomorrow. I move –
That the debate be adjourned until tomorrow.
The SPEAKER – The clock starts again, and we are now on the adjournment debate ‑ five minutes.
Mr BAYLEY (Clark) – Honourable Speaker, the proposition here is the debate be adjourned until tomorrow, tomorrow being when the Supreme Court has resolved its findings in relation to the case before it at the moment, including the application and the grounds of the Environmental Protection Authority. This is the proper way to do this. Allow the courts to interpret the problem, allow them to provide advice and then consider that advice and take a situation forward.
The UTAS law school academics state:
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.
They go on:
Suspension of 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 this 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 Dune can proceed unimpeded by legal requests.
They go on to say:
Where the review of law is necessary, the government must clearly identify shortcomings or problems with the operation of the law and engage in public consultation, including with legal and other experts, on the nature of those problems and the best manner in which to address them, including by appropriately balancing all relevant interests. Conducted in that manner, law reform processes enhance public confidence that the parliament acts in the interests of the community as a whole and that new laws are based on well-considered justifications.
Finally:
In contrast, this bill is merely accompanied by a short announcement on the Department of Premier and Cabinet’s website and a two-week period for public submissions.
This bill is a travesty. It is undermining the EPA and other litigants and applicants in an active Supreme Court case. It ignored community consultation that raised very real, valid and expertly put legal opinions. It progresses the interests of a single multinational developer at the expense of the public interest, proper process and environmental and Aboriginal cultural heritage values on public land. It is not urgent and it has not been justified.
This adjournment, and I urge members in this place to support it, is put here to allow for proper process to play out. It allows the EPA to stand on its own two feet, one of the very few times the EPA is engaging in a strong and robust manner in the legal system to stand up for the environment, one of the few times the EPA is actually taking action to protect the environment and yet it is going to have the rug pulled from under its feet.
Allow the court to do its thing. Give this issue time to play out and give proper consideration of the findings of the court. When that happens, if it is determined that there is seriously a problem that we need to address, then go through the proper process, amend the State Coastal Policy in the proper way, engage in a genuine and meaningful way with the community and genuinely listen and take account of their concerns and then act. To not do so raises serious questions about the intent of government, its favours for a single private developer and misuse of the processes of this House.
The SPEAKER (Ms O’Byrne)- The question is –
That the debate be adjourned until tomorrow.
The House divided –
Motion negatived.
Mr BAYLEY (Clark) – Honourable Speaker, that is pretty underwhelming, I must say, and very disappointing. That is a sound argument being raised by legal experts who are literally teaching our children about the laws and yet we, as a House, have rejected that.
The one positive I take from that contribution to debate was that all I heard in the arguments of those members, with the exception of Mrs Beswick, who voted against the motion to adjourn –
Dr Broad – I draw your attention to Standing Order 142, reflecting on a vote of the House.
DEPUTY SPEAKER – I ask the member to make his contribution with regards to the bill before us.
Mr BAYLEY – If I may just reflect on the debate then. The only arguments I heard being put forward by some members were that this is about doubt removal. This is about retrospectively validating approvals in the past. No mention of Robbins Island. This is not about Robbins Island. This is about a sign; this is about a fence; this is about cows. Nothing about Robbins Island. The reality is it removes doubt regarding the court case.
I foreshadow, in regard to Mr Garland’s amendments which have been circulated to us, that if this is not about Robbins Island, there should be no problem excising Robbins Island from this bill. If this is truly about removing doubt on those signs, fences, bridges and jetties, then let us constrain the bill to those. It is clear from the advice of these law experts that we are straying into really dangerous territory to intervene and undermine the case of the government’s own Environmental Protection Authority.
Time expired.
