Back to All News

Senate Estimates: Assessment mechanisms and the Carmichael Mine

Senator WATERS: I want to stick with the proposed hand-off of approval powers. Can I just confirm whether the department is doing any policy work to progress the delegation of approval powers to the states.

Mr Tregurtha: In regards to policy work?

Senator WATERS: Any work at all.

Mr Tregurtha: The department continues to undertake negotiations and discussions with the states and territories. As I said, there was follow-up work in relation to the public comment period for bilateral approval agreements. For example, in the case of South Australia and Western Australia, the public comment period for those two draft approval bilateral agreements finished earlier this year in January and February. So we are continuing discussions with those states, for example, in regards to negotiating text at an officials level for a bilateral approval agreement as opposed to the assessment agreements which are already in place. That work continues with a view to implementing the one-stop shop.

Senator WATERS: You said earlier—and I will just confirm this—that you have not briefed the minister because you are waiting for the bill that is currently blocked in the Senate—

Mr Tregurtha: We continue to brief the minister in relation to developments in the one-stop shop work. We have not briefed the minister on signing any of the agreements at this point.

Senator WATERS: Just from a Queensland perspective, with the change of state government, has there been any review of the parameters of the assessment bilateral—namely, the inclusion of the impact assessment report under the state development act, which is a pathetic process that should never have been accredited in the first place? Have there been any discussions about removing that process from accreditation under the assessment bilateral?

Mr Tregurtha: The department has had a number of preliminary discussions with Queensland officials since the change of government in the Queensland jurisdiction—

Senator WATERS: On that matter?

Mr Tregurtha: We have not yet discussed specifically the current assessment bilateral agreement as it is in place. However, as with any jurisdiction, the Commonwealth remains willing to discuss any aspect of any assessment bilateral agreements in place with a view to continuing good partnerships with all jurisdictions and with a view to—

Senator WATERS: So the answer is no, not yet. Have there been any discussions or representations made by Queensland, by an official at any level, about its intention to change direction in agreeing to pursue the handover of approval powers?

Mr Tregurtha: That is in relation to the approval bilateral agreement?

Senator WATERS: Yes.

Mr Tregurtha: There has not yet been any formal communication from a Queensland official in relation to a position of Queensland in either direction. At the moment, as things—

Senator WATERS: So no formal discussion of approval bilateral with Queensland.

Mr Tregurtha: No formal communication. At the moment, as things stand, there is a draft approval bilateral agreement with Queensland.

Senator WATERS: I am aware of that.

Mr Tregurtha: That has been out for public comment, but as you know that pre-dates the Queensland election.

Senator WATERS: On that, earlier you implied that after the public consultation period had ended, particularly for Queensland and New South Wales, there might have been some revisions to the draft, based on the public comments received. Can you clarify for me if there have been any revisions based on the public comments and, particularly for Queensland, what are they?

Mr Tregurtha: I would have to take that on notice as I was not in the position when the Queensland draft approval bilateral agreement was taken, so I cannot speak to that.

Senator WATERS: Is there anyone in the room who can, given that it is an incredibly crucial piece of policy development on which the future of many matters of national environmental significance rest?

Mr Knudson: Because it is so important and there is not an officer in the room who can answer that question we have to take it on notice to make sure that we provide you with exactly the right information.

Senator WATERS: Can I just express my disappointment that there is not an officer in the room who can take that question, given that we are all interested in this issue. Next time it would be good in the interests of time to have those people here. We will ask you again shortly. I think you, Mr Knudson, effectively implied that the state would not be accredited if it did not reflect Commonwealth standards. Have you advised the minister about the provision in the EPBC amendment bill that is before the Senate and is currently blocked, which says that those standards do not have to be wholly reflected in state laws?

Mr Knudson: I think the issue is that the government has put out its standards under the EPBC Act. What the bill is trying to clarify is that it does not mean that each state, for each piece of legislation, has to reflect by word exactly the language that is in the act.

Senator WATERS: Hence my concern.

Mr Knudson: We think that there are many ways to achieve the outcomes, and that is what we are focused on in terms of our assessment of whether the states are meeting the standards and ensuring that they are going to meet it from an outcomes basis.

Senator WATERS: Have you advised the minister to stop saying that the states will have to comply with the standards, given that by law they will not because of the bill the government is seeking to pass?

Mr Knudson: I respectfully think this is a difference of opinion. What I am saying is that there are many ways to meet a standard. The bill's intention is to ensure that that is recognised.

Senator WATERS: I think that is a very tricky answer. I appreciate you are in a difficult position. It is something I will take up with the government.

Mr Thompson: Just to add to that, you are making a distinction between what is in black-letter law and—

Senator WATERS: Yes, I am— Mr Thompson: And what is in—

Senator WATERS: In policy or guidelines at the least—

Mr Thompson: The policy and guidelines, as Mr Knudson said. But all of that sits under the compliance and assurance framework that is part of the one-stop-shop policy.

Senator WATERS: Thank you, I am coming to that. It is my next question. I have the draft Queensland bilateral, and that assurance mechanism gives me no assurance whatsoever. This is a conversation we have had before. So I was particularly interested in whether those bits have been updated following the public consultation. You cannot tell me that because there is no-one in the room who can answer. But the assurance framework effectively requires Queensland to dob itself in if it thinks its process is crap, to put it bluntly. I think that is a silly process that clearly will not work. So I am not satisfied that the assurance mechanism is appropriate, particularly not to safeguard matters of national environmental significance. Is any work being done to tighten that assurance framework?

Mr Thompson: Your characterisation of the assurance framework in those terms is not consistent with our understanding of how the assurance framework will work in practice. Mr Knudson—

Senator WATERS: How else do you interpret clause 16.3—

Mr Thompson: If you would let me finish. My Knudson and Mr Tregurtha might add to how that will work in practice, or how we expect it will.

Mr Tregurtha: On either side, where there are concerns in relation to the achievement of appropriate protection for matters of national environmental significance, there are mechanisms through the assurance framework that progressively provide, if you like, a greater degree of capacity for, in this case, the Commonwealth to register any concerns it may have, which starts at the fact that we have established with each state and territory the senior officers' committee meetings. So the Commonwealth has the capacity to raise at a very senior level with state officials matters where concerns are being raised in relation to a particular project, with a view to ensuring that the standards required under the national environmental law are being met. Following that, if satisfaction is not gained, then there is a notice of particular interest, which is a public process where we can work through where that can be put out into the public domain to say that there were particular concerns in relation to a particular issue that the Commonwealth is pursuing in relation to a particular matter under assessment. Following that, there is in each agreement the capacity for the state, in the case of the jurisdiction, to opt out—

Senator WATERS: Yes, cancel the bilateral agreement. I understand.

Mr Tregurtha: —or for the minster to call in a project—of course, this would be a last resort—where there is significant concern in relation to the assessment and/or approval of an action. The minister is able to call that process in, so the Commonwealth approval power reverts back here. Ultimately, there is the capacity to rescind the agreement, in and of itself, where there are significant issues in relation to the states.

Senator WATERS: Sure. We all know that is not going to happen.

Mr Tregurtha: So those levels provide an escalation process and a wide range of tools available under an assurance framework for the Commonwealth, in this instance, but also for the state to participate in a mechanism to ensure that standards are being maintained.

Senator WATERS: I am across all of that, because I have read the document. My concern is the state of knowledge. How is the Commonwealth to know that red flags need to be raised and they then need to trigger these processes, given that they have delegated it to the states. It is a practical concern. How will they know unless Queensland or one of the states dobs themselves in? How is it going to happen?

Mr Tregurtha: The Commonwealth is not giving up its capacity to engage in and review environmental assessments and approvals. There will still be a capacity within the Commonwealth, both from a compliance and enforcement perspective, but also from an assessments perspective, to be able to engage in projects where they are determined to be of concern from the Commonwealth's perspective.

Senator WATERS: How do you determine that if you are not looking any more because you have delegated it? That is my question. Pardon me for interrupting but you are not answering my question.

Mr Tregurtha: Issues in relation to environmental assessments can be brought to attention in a number of ways. They can be brought to the attention through public concern being raised with the Commonwealth's enforcement areas. They can be brought to the attention of the Commonwealth through its review of the approaches being taken by states and territories. Significant projects can be discussed through the senior officers' committee meetings, which I discussed before. Where there are significant projects or projects of national importance, clearly the Commonwealth would retain an interest in those projects as they move through the state processes. The implementation—

Senator WATERS: How is something that is likely to have a significant impact on a matter of national significance not anything other than a project of national significance and national importance? How are you drawing that distinction? It is all nationally significant. That is why we have international obligations to protect these places. Where do you define what the Commonwealth minister keeps and what he does not, and why is that not reflected in the draft approval bilateral?

Mr Tregurtha: In the same way that the department determines the application of our resources to projects based on their complexity. I am not suggesting that none of these things are not significant as a national matter. As you rightly point out they are all matters of national environmental significance. However, there are some projects where the impact on a nationally protected matter is very well known, is quite small and is constrained to a particular area, so therefore it is easier to keep an eye on that as opposed to, for example, a large coal mine where a range of different nationally protected matters may be involved, including world heritage or national heritage. What I was doing was drawing a distinction between the complexity of projects and the amount of resources that might need to be applied to track—

Senator WATERS: How many staff do you have looking at that. My understanding from earlier estimates—

CHAIR: Excuse me, Senator Waters. As the chair, I can interrupt at any time. I draw to your attention the fact that we will finish this hearing at one o'clock and we still have one more topic to go, which is 1.1. I am quite happy to continue on this particular segment. However, it would be cutting into other time. So can I get an indication from the members of the committee as to what their desire is in relation to this.

Senator WATERS: I can constrain it to five more minutes.

CHAIR: We will move to the next topic at 12:40.

Senator WATERS: So can you take on notice for me how many staff you are in fact planning to retain or not to undertake those functions, because my understanding from previous estimates is that there was not going to be either any or many, certainly not sufficient to somehow mind-read the state governments and tell the Commonwealth when they need to do their job? Thank you. Let us move on to another topic very quickly. The IESC advice on Shenhua was issued last week and it pointed out that there were quite a number of knowledge gaps in relation to the water impact of the Shenhua coalmine, proposed for, arguably, the best food-producing land in the country. Can I just confirm that the minister has asked IESC to do further research to fill those knowledge gaps? Who has been asked to fill the knowledge gaps identified by that advice?

Ms Stagg: You are right: the IESC has identified a number of areas where they would recommend further work. They also provided advice that they consider that that work could be undertaken prior to the commencement of mining and during the undertaking of mining activity. In particular, they raise some issues and flag that the further detail that they have indicated would be helpful can only be obtained through actual results.

Senator WATERS: My question was: who is going to do that work?

Ms Stagg: The IESC indicate that the proponent could do that work. But in terms of how that is addressed, that is a decision for the minister when he considers this project and whether to give his approval. He would then also consider how those matters should be addressed. Mr Knudson: If I may add, I think it is important to note a couple of key things that came out of IESC's advice.

Senator WATERS: I am across that and I am afraid I have only got three minutes. So if you do not mind— and I do not mean to be rude—if you could give that to me in writing at another time, that would be great. I will read that. Senator Birmingham: We can certainly make sure that information is provided because I think it is important to highlight.

Senator WATERS: Thank you. The proponent may be asked to do that work. Does the process require any ground-truthing by departmental officials of the proponent's further claims?

Ms Stagg: Again, that is a decision for whether the project should be approved under national environmental law. The minister can then consider conditions, if he considers that the project can be approved. So, typically, conditions of approval for other projects have, for example, required information to be put into plans which are reviewed by the minister or the department.

Senator WATERS: 'Ground-truthed' was my question. Would they be ground-truthed by the department? They are normally not, but I am hoping to be told that they will be, given the significance of the area.

Mr Knudson: At this point, because a decision has not been made on whether this is going forward, it is a matter of speculation.

Senator WATERS: Thank you. I am now moving to the Carmichael mine, in the two minutes I promised the chair that I would finish up in. Given the recent evidence given by Adani to the relevant court in Queensland, the land court, that is actually at massive odds to the evidence that they provided in their own EIS to your department, have they provided an explanation to the department? Have they sought to update their figures? Will the minister reconsider the approach to this mine approval, given that all of the figures are now suddenly much less in terms of jobs, royalties and are possibly zero in terms of company tax? What is the process that you will use, given that they themselves have now said different things to a court versus what they said in their EIS?

Ms Callister: The matters that are looked at under the EPBC Act are primarily matters that relate to impacts on matters of national environmental significance. The specific issues that you are talking about get to the elements that we look at in terms of social and economic. At this stage we have not examined that information in detail but, from my recollection of the condition set, there is nothing in that that would give rise for us to review the condition set or the actual approval process.

Senator WATERS: So you would not consider this significant new information that is relevant to the minister looking at the social and economic impacts of a project when making an approval decision under the EPBC Act?

Ms Callister: As I said, we have not reviewed that information in detail. Without having that in front of me, I could not give a detailed view, but my indication would be that there is nothing that I have seen in the media reports that indicates significant different impacts on matters that are protected under the act. Senator WATERS: If you can take on notice whether such a reconsideration has been requested and whether you just have not got to it yet? Or I will ask again in two weeks.

Ms Callister: There has not been any reconsideration requested.

Senator WATERS: In relation to the Abbot Point ownership issues, in answer to a question on notice from October last year, QON 73, you stated that the department does not do any independent investigations about whether companies are suitable people to hold environmental authorities. Specifically you did not look at whether Adani was a suitable person to hold an environmental authority; you just relied on the company evidence that they had provided. Can I get you to confirm that you just take the proponent's word for it? You genuinely do not check or do any sort of process to work out if there is actually something that they are not telling you?

Ms Callister: We do do some fairly simple checks to make sure that companies are as they have outlined, in terms of their Australian company numbers, ABNs and so forth, to get that correct. But the broad way that the environmental impact assessment process works—and in this instance it was a process that was undertaken by the Queensland government on our behalf as well—is that we largely rely on the information that is provided to us by the company. However, we do do internal checks to look at whether we have any compliance related information for those companies, whether there have been any breaches brought to our attention in terms of either Commonwealth or state law. We do take that into account.

Senator WATERS: That would be domestic breaches. 

Back to All News