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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-03-23 Daily Xml
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ENVIRONMENT PROTECTION (ACCESS TO INFORMATION) AMENDMENT BILL

Introduction and First Reading

The Hon. M. PARNELL (16:42): Obtained leave and introduced a bill for an act to amend the Environment Protection Act 1993. Read a first time.

Second Reading

The Hon. M. PARNELL (16:43): I move:

That this bill be now read a second time.

The short title of this bill is the Environmental Protection (Access to Information) Amendment Bill, and the bill resolves an issue that has been of concern in the community for many years, in fact, since the Environment Protection Act came into operation in early 1995. The question of community access to environmental information has come to a head in the last 12 months on a number of occasions.

Probably most recently, it was in relation to the controversy surrounding the disclosure of information about groundwater pollution under residential areas, including Edwardstown, south of Adelaide. Last year there were also issues around the EPA advice to planning bodies such as the Development Assessment Commission. The question that was asked then and is still asked is: why were residents not told that the EPA had expressed serious concerns about new housing in close proximity to noxious and dangerous industries?

So, whilst the public was buying properties off the plan from the Newport Quays consortium, it seems that there were at least three government agencies that we know of, including the EPA, that had expressed strong reservations against the proposal to construct housing in that area, and that information was effectively hidden from the community. I will note at this point that, earlier today, we heard from the Hon. Michelle Lensink a speech on a similar topic, and in that contribution she raised many of the questions that I say are answered by this bill.

In terms of the history of the community's access to information under the Environment Protection Act it is probably worth noting that, when the act was written in the early 1990s, it was envisaged that the regulation and management of pollution would be open and transparent and that the community would have a legal right to see pollution documents. To achieve this the act incorporated the concept of a public register so that members of the community could get ready access to information about pollution licences and other important information.

The key questions that we need to ask ourselves in relation to access to information are: what is it that the community should be entitled to see; how should that information be accessed; and what should it cost? I do not expect anyone in this place would answer those questions by saying, 'The Freedom of Information Act.' We know that act is an unwieldy and expensive mechanism that has, as its primary responsibility, the hiding of more information than it discloses. Freedom of information is not the answer to access to environmental information.

So, how does the public register work? The first thing to note is that it is a notional register. It is not as if there is a series of lever-arch files on a shelf somewhere incorporating the register. Basically, it is a notional concept that includes a range of information that should be made available to someone if they were to ask. What sort of information is on the register at present? The most obvious and probably the most commonly requested form of information would be pollution licences. There are some 2,200 companies that have pollution licences under the Environment Protection Act. If you want a copy of one of those licences, you get it through the public register. In fact, as members would know, if something is on a public register you cannot get it under the Freedom of Information Act, because that act states that if you can get information in some other way you must use that other way.

So, if you live next door to a factory that has a pollution licence, the way to get a copy of it would be to physically attend the office of the EPA and hand over a relatively large sum of money (between $10 and $20) for a photocopied 10-page document. You cannot get the information from the Internet. If you are a member of parliament, then they will perhaps bend the rules a little bit. I have certainly had documents emailed to me, but I do not think that is available to the general public. The EPA will also invoice a member of parliament for charges, whereas members of the public need to pay cash or cheque on the day. So that is pollution licences.

Another form of information is the detail of site contamination that has been notified to the EPA. So, whilst we have been having a debate about why the community was not told about site contamination, the truth of the matter may well be that, if they had known to ask, then maybe they could have obtained that information through the public register. Similarly, the public register includes details of serious or material environmental harm that come to the notice of the authority. In other words, if the EPA knows about these incidents that have raised such concern in the community then, technically, that knowledge is on the public register but the community does not know to ask for it. That is one of the reasons why this public register does not work properly.

The bill that I have introduced today does four main things: first, it provides that the EPA's public register should be kept in an electronic form on a website that is accessible to the public; secondly, it provides that access to that environmental information should be free of charge; thirdly, it provides that information should be published in a timely manner—in my bill within at least seven days of the document being eligible for inclusion on the public register; and, fourthly, it consolidates and expands the list of information required to be kept on the public register. I will go through each of those items.

First of all, providing that the public register should be kept in an electronic form is to bring the EPA into the 20th century. Let us forget the 21st century; we are talking about the bringing the EPA into the 20th century. The public register, in most other jurisdictions in advanced economies, is on the Net and has been on the Net and has been searchable on the Web for many years.

In fact, as a teacher of public health law at Flinders University well over 10 years ago, I would send my students to the American EPA website, where you could track the route that the toxic waste truck took from the source to the final dumping place. You could map that online and you could ask the map to tell you how many schools and kindergartens the truck went past. This is fairly basic internet technology that has been around for decades, yet in South Australia we have a paper-based system that requires you to attend the offices of the EPA in Victoria Square.

If people think that American examples are not suitable, go online and look at the New South Wales EPA. Google 'New South Wales EPA public register' and you will come up with an online searchable register of pollution licences and notices freely available. If they can do it in New South Wales and other states, they can do it in South Australia.

The second thing the bill does is it provides that access should be free. Unfortunately, when the act was drafted in the early 1990s, the public register was designed to be a user-pays system, and that is why the EPA has been able to charge exorbitant fees. In South Australia, for example, you cannot use your own computer.

If the access requires computer access, you have to attend the EPA, use one of their computer terminals and pay $16.80 for each 10 minutes, which is $100 an hour to use an EPA computer to access information that you should be able to get for free from your own home or office. There is a search fee of $16.80 and if you find something that you want a copy of you will pay $4.25 for the first page and $1.25 for every page after that. If it was available online then you would print it off at your own expense on your own home or office computer.

At this point, I should say that the EPA has always treated my requests for access to the public register in a courteous and timely manner. As I have said, the EPA has been happy to invoice me, rather than demand cheque or cash on the spot, but the point is that we should not have to pay for this information. We should not have to pay for basic information that could be simply and easily put on the internet for us to access at our own expense.

The third thing is that my bill requires that the pollution information, the various items on the public register, should be published in a timely manner, so within a week. There is no reason that the EPA should be able to sit on information and not publish it, when all of this information exists in electronic form. All of the licences are electronic and all of the pollution-monitoring data received by the EPA (Excel spreadsheets, or whatever) is electronic, so there is no reason that it cannot be put up in a timely manner. I make the point that most other government departments are already doing this. They are abiding by statutory time frames and they are publishing information online.

The fourth thing the bill does is it consolidates and expands the list of documents that need to be disclosed. The current list of documents on the public register is split between section 109 of the act and a number of other documents that are covered by regulation 16. My bill takes both of those lists, consolidates them and incorporates them into a new schedule 2 to the act.

I have added some new items and I want to briefly explain why I have done that. The first grouping of new items is that I think that the EPA should be publishing its submission to development plan amendments. What that means is: rezoning exercises. We know, from evidence that has been given by the EPA to parliamentary committees, such as the Environment, Resources and Development Committee, that it often provides advice to local councils on rezonings and it is often ignored.

Here we have the state's pollution watchdog, our foremost authority on pollution, giving advice to councils and the councils saying, 'Thanks very much. We don't want to hear what you have to say.' That might be the councils' right to do that; it is also our right to know what it is that the EPA is saying so that we can tackle local councils if they are not accepting sensible suggestions from the EPA. So, these formal submissions by the EPA to councils and the planning minister in relation to rezoning exercises or development plan amendments should be published.

Secondly, submissions that are made to individual development applications should be published, including those applications where the EPA has a right of direction and those where the EPA has a right to simply give advice. It is unacceptable for anyone to have to go through the Freedom of Information Act to find out what were the EPA's concerns about the Newport Quays development, wait the month and a half and go through the rigmarole of internal review or whatever. That information should have been routinely made available by the EPA on its website.

If the EPA has a right to comment on a development application and if it exercised that right, we should know what it is it has said. The third new piece of information are submissions that the EPA makes to the planning strategy, and the fourth are submissions the EPA makes to environmental impact statements, public environmental reports or development reports. We already get some of this information through other means. For example, we know with the Olympic Dam expansion some of the things the EPA has said, because it was included in a whole-of-government response to the Olympic Dam expansion EIS.

My amendment provides that, where the EPA formally puts in a submission to any of these processes, that should be routinely published. None of these things are particularly novel—they are all things where we have been able to access that information in other ways, such as through freedom of information. It makes sense for it to be published online. The question then remains: why is it that the EPA has not joined the 20th century? Why have we not been able to do what other jurisdictions have in terms of access to information?

The two reasons most commonly put forward are, first, that there is a cultural problem—a culture of secrecy, a culture of 'we're the experts; we know best' that has stood in the way of disclosure. The other reason often advanced is lack of resources. In relation to culture, the culture of the EPA has changed considerably over time. I can remember tackling the EPA early on where it insisted on referring to polluting industries as its clients or customers. The customers or clients of the EPA are the public who are being protected from pollution.

The licence-holders are regulated industries; they are not customers or clients that are deserving of some special treatment. They are deserving of fair treatment under law and deserving of every assistance the EPA can give them to help them do a better job looking after the environment, but the EPA in the early part of its history had it completely the wrong way around where it saw its primary obligation as being in relation to industry rather than the community that it was protecting from pollution. So, there has been a change there.

Is it resources? The EPA would certainly claim that any change to public disclosure, such as amendments to the register or whatever, will cost money. I do not think it will cost anywhere near as much money as people say. For example, if the EPA in New South Wales has the software for putting up this stuff online, as does just about every other jurisdiction, it cannot be that hard for the South Australian EPA to simply put up the documents. I have said in this place before that probably myself and a couple of mates on a Saturday afternoon could put the 2,200 EPA licences on the web; it is not that hard. It should do it.

It is not the first time I have had to weigh into this debate. Back in the early 1990s I had a major stoush with the EPA over access to public register information. It was refusing to give the community access to pollution monitoring data. Its reason was that it said it might be a breach of commercial confidentiality. In other words, if you knew the contents of the pollution coming out of a smokestack, somehow you would be able to reverse engineer that data and come up with the recipe for steel, or determine the 11 herbs and spices that go into fried chicken.

It was an outrageous argument, and it took some convincing for the EPA to realise that it was being stupid and that it needed to make access to pollution data available to the public, and it now does that as a matter of policy. If an EPA licence requires the company to monitor pollution, the EPA will now provide that data on request to the community. I am saying that it needs to go up on the website as a matter of routine. I also acknowledge, in conclusion, that the EPA is not unaware of the issues I have raised. Also, I do not believe it is unsympathetic to some of the issues I am raising.

I was pleased to be invited to address a subcommittee of the EPA a fortnight ago to discuss these very issues, and from that meeting I know that the public register is on the EPA's agenda, and I know that they know that they can and should do better. I will be sending a copy of my bill to the EPA forthwith, and I look forward to hearing their views on it. I am also interested in hearing from them and from other members of parliament about any changes that they think would enhance the ability of the community to access important environmental information.

What we have to remember, though, is that ultimately it is up to this parliament to set our expectations of our pollution watchdog. We tell the EPA what we require of them in relation to disclosure. We need to remember also that the EPA is not independent of government in relation to these matters. Under the act, there are only two areas where the government cannot tell the EPA what to do: licensing and also enforcement.

So, the government could have told the EPA many years ago that they needed to do better in relation to public disclosure. The government hides behind the so-called independence of the EPA when it suits them, but in this instance I am saying that the parliament should step up to the plate. The parliament should make it clear to the EPA what it is we expect of them, and this bill provides an opportunity for the parliament to mandate increased openness and transparency. I commend the bill to the house.

Debate adjourned on motion of Hon J.M. Gazzola.

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