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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2007-10-24 Daily Xml
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ENVIRONMENT PROTECTION (COMMISSIONER FOR THE ENVIRONMENT) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 6 June 2007. Page 297.)

The Hon. M. PARNELL (17:37): The Greens are very pleased to support this bill. We believe it provides an important additional check and balance on the use of executive power in relation to environment issues. The Environment Protection Authority, as members would know, is generally referred to as the independent EPA, and that is the way most people think of it. Yet what we have seen through some recent pollution cases, such as the Whyalla case and some of the others the Hon. Sandra Kanck pointed out in her second reading speech, is that that independence is very often under threat. So, if we cannot rely entirely on the EPA to be the independent watchdog for the environment, we need to find some alternative models, and I think the model the Hon. Sandra Kanck has put forward (that is, a commissioner for the environment) is a good model.

It is a good model because the breadth of functions of the proposed commissioner is broad and includes not just items within the scope of EPA powers but also a range of other government agencies—agencies dealing with natural resources management, with the protection of our coast, with the exploitation of our marine environment through fishing or aquaculture, and the protection of our native vegetation as well. All of these issues could come under the watchful eye of a commissioner for the environment.

The difficulty we have with the current system is that a large number of well qualified and well intentioned public servants often find that their recommendations and their decisions are overturned on political grounds. The value of having a commissioner for the environment would be that we could dig down and work out whether some of these problems could be solved through measures, whether it be law reform measures or procedural measures. The Environment, Resources and Development Committee of the state parliament has for some time been looking at the question of coastal development, and one of the issues that came out of the evidence of that committee was that the advice of bodies such as the Coast Protection Board is routinely ignored.

I think the evidence was that, in something like 20 per cent of cases where they give advice to local councils about whether or not to approve a development, that advice is ignored. The advice is usually, 'Don't allow that development to go ahead; it will be harmful to coastal processes,' yet the council ignores it and goes ahead. We see similar cases in relation to native vegetation and also water issues through the Natural Resources Management Act.

I think this commissioner would play an important role, and the fact that the commissioner reports to the parliament, whereas the bureaucrats that he or she would be overseeing all report to ministers, is very important, because it would give us some indication of whether we are using our environmental expertise in the Public Service to its best advantage or whether we are finding that our hard-working officials are being stymied by political considerations. That is why I think having an independent commissioner is important. The Hon. Sandra Kanck, in her second reading speech, referred to a large number of cases where local communities have felt disempowered—

The Hon. Sandra Kanck: You can add to the list.

The Hon. M. PARNELL: I have been invited to add to the list. I will not pretend for one minute that the Hon. Sandra Kanck's list is comprehensive, but what I will say is that I think every case study she refers to is one I have had some involvement in, either during my brief time in this place or during my previous 10 years as an environmental lawyer. The cases she referred to involved people who were, in the main, clients of my office. I had to point out to those clients on a very regular basis that they were not working in a pure system where science and good environmental policy would always prevail; they were working in a system that was very much corrupted to political ends.

What I find, as I mix in environmental circles, is that I very often get public servants, officers of the EPA for example, coming up to me privately and quietly to thank us for batting for them because they know that at the highest levels their voice is not being heard. So, in my view, the role of commissioner would be one way of trying to cut through some of this problem. We could find out exactly what the best science is and what advice the officials might have been given and, if that advice has been ignored on political grounds, we at least need to make that transparent. That is not to say that there will never be political considerations in environmental decision-making—there will be—but I think we need to ensure that the best possible advice and the best possible decisions are what drive environmental decision-making. With those brief remarks, I commend the honourable member for introducing this important legislation, and I advise that the Greens are happy to support it.

The Hon. I.K. HUNTER (17:43): Whilst I acknowledge that there is some merit in the arguments put forward for this proposition by the Hon. Ms Kanck and the Hon. Mr Parnell, the government is concerned that the disadvantages far outweigh those limited virtues. The government does not support the bill. We are concerned that the introduction of a new commissioner, as proposed in this bill, would require significant cost for the government and simply add an extra level of review that would cover similar ground to the reviews that already occur. The Hon. Ms Kanck, in her second reading speech, commented correctly that the Ombudsman and the Auditor-General are examples of publicly-funded bodies that examine government bodies.

Indeed, the Auditor-General currently reviews the EPA annually to guarantee that it is complying with the Environment Protection Act, and the Ombudsman undertakes reviews of the EPA to ensure that decisions are made in accordance with the Environment Protection Act, on application by a complainant. However, these are not the only review processes that have been put in place by successive state governments. Individuals are able to appeal decisions made by the EPA to the Environment, Resources and Development Court if they feel they have been affected as either an applicant or a holder of a works approval or a licence, or as a person to whom an administrative order, such as an environmental protection order, has been issued.

The parliamentary Environment, Resources and Development Committee examines situations relating to conservation, the environment, land use and transport. In particular, it may consider reporting on matters relating to any of the following issues, as they are referred to the committee: how the quality of the environment might be protected or improved; resources of the state or how they might be better conserved or utilised; planning; land use or transportation; and issues relating to the general development of the state. These powers previously resulted in the year 2000 review of the operation of the Environment Protection Authority as well as other studies focusing on the EPA business, including stormwater and the present inquiry into coastal development.

The EPA itself is an independent body run by an independent board which is not subject to direction by the minister in regard to making reports to the minister, enforcement of the Environment Protection Act, or performing its functions of environmental authorisations and development authorisations. The EPA conducts detailed reviews of practices covered in the Environment Protection Act and is required to publish reports relating to the current state of the environment.

The Hon. Ms Kanck's proposal is based (I think) on the New Zealand Parliamentary Commissioner for the Environment which was established in 1986. If you check that commissioner's website you will find that the staff listed for that commissioner include an Assistant Commissioner for the Environment, a corporate systems manager, a communications adviser, an acting director in charge of citizens' concerns, three principal environmental investigators, six environmental investigators, and two support staff. It is important to remember that, in 2005, the New Zealand parliament voted to provide $2.319 million to fund the office. Again, if this model were to be followed in South Australia, it would require the use of significant resources that could perhaps be better used elsewhere.

The main benefit of Ms Kanck's proposition is, I suppose, the creation of a single office that would have specialised knowledge relating to the processes in regard to the EPA, and of other agencies, compared to the wider jurisdiction of the Auditor-General and the Ombudsman. However, because of the existing review processes of EPA decisions carried out by the Ombudsman, the Auditor-General and the Environment, Resources and Development Committee of parliament, as well as the reviews undertaken by the independent EPA itself, the advantages of another layer of investigation do not seem to overshadow the resources required to establish the proposed environmental commissioner and his or her office and staff. Any such funding would perhaps be better spent on priority projects. The government will not be supporting the bill.

The Hon. J.M.A. LENSINK (17:47): I am in the rare position where I actually agree with everybody who has spoken on this bill already. As I understand it, the Hon. Sandra Kanck has concerns that, while we may have amended the bill which oversees the EPA's roles and responsibilities, it has become a rather timid agency of government in terms of its environmental monitoring and, therefore, this bill seeks to have another agency to oversee it.

The Hon. Mark Parnell also mentioned the need for independence of the EPA and referred to ERD evidence (most of which I also participated in) where agency advice has been ignored, and he specifically referred to the Coastal Development Board. I agree that governance issues are first and foremost when it comes to government agencies, and I completely agree with him that decisions should be based on science and they should also be transparent.

However, the environment portfolio is already covered by a number of agencies: the EPA, obviously; Zero Waste; the Department for Environment and Heritage; and the Department of Water, Land and Biodiversity Conservation. In my brief experience in holding the environment portfolio on behalf of the Liberal Party, it has become quite apparent to me that the environment is not a part of policy area that this government is seeking to prioritise. One of the best examples of that is the decision in relation to the solid waste levy so that, instead of actually providing, in the budget, the appropriate level of Treasury appropriation, this government rather cynically stole the money which was being collected, effectively, by local government. That indicates to me personally that it does not take the environment seriously, if it is not prepared to provide for recurrent funding for those important works.

Indeed, in the budget papers for the EPA there is a considerable amount of resourcing for this financial year which is coming out of fines and levies, and those forms of revenue, rather than from Treasury appropriations. I think that speaks for itself. If this government expects the EPA to operate effectively, it is going to do so through fines and those sorts of means, rather than actually giving it a stable base of funding to enable it to carry out its operations.

I would also like to commend the work of the EPA. I found the staff particularly helpful in relation to the Site Contamination Bill. It could not do enough to assist us and advise us through that very technically complicated bill. Clearly, it is very passionate about its work and very competent. In the interests of resourcing, the Liberal Party will not be supporting this bill, although we are sympathetic towards its aims.

The Hon. SANDRA KANCK (17:51): It is fairly obvious that this bill is about to be defeated. I find that disappointing because it came about as a result of representations from the environment movement which had expressed frustration over a period of time about a number of environment agencies (the department amongst them) and the EPA. It will be disappointed to hear that neither the government nor the opposition has been willing to support this. The Hon. Ian Hunter said that the disadvantages outweigh the benefits, but I wonder what the disadvantage is of accountability, and what the disadvantage is of transparency, because that is what this bill was going to bring.

The comments about the New Zealand Environment Commission having a budget of $2.5 million could well be answered with the interjection that the Hon. Mark Parnell made at the time, which was that it was probably money well spent.

Nevertheless, that is a well developed organisation and one that is well accepted by people in that nation, and they would not expect to be funded with anything less. I assume that in the early stages of setting up something like this that would not be the sort of funding it would get. At the time I introduced it, I said that I was effectively putting it out for discussion. I indicated to people that I was open to having it amended—and I have even had a few suggestions for amendments— but, obviously, I will not have the opportunity to put those amendments forward.

This was a ground-breaking move, because South Australia has never had anything like this before. I can promise you that it will not be the last that this parliament will hear of it, because I will look at the bill and amend it with some of the suggestions that have been made to me. Members can be assured that they will be placed in a position of once again having to consider it.

Second reading negatived.


At 17:55 the council adjourned until Thursday 25 October 2007 at 11:00.


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