Mr JAENSCH (Braddon - Minister for Planning - 2R) - Madam Speaker, I move -
That the bill now be read a second time.
Eleven years ago this House passed amendments to the Land Use Planning and Approvals Act 1993 to introduce special permits under the Projects of Regional Significance, or PORS, process. That bill, which was supported by both the Liberal and Labor parties, introduced a new assessment process into the planning system to fill the space between ordinary development assessments at a council level and the Projects of State Significance process.
The PORS process provides for the assessment of projects that have significant regional impacts and importance by an independent expert panel established by the Tasmanian Planning Commission. The PORS process was well intentioned and reflected similar processes in other states, but history shows it did not prove to be an attractive option for project proponents, including the government that created it. Despite the legislation requiring a review after five years, this never happened, largely because it had never been used.
The irony is that the process specifically designed to provide for important and complex regional projects, whilst offering assessment by an independent panel, did not even provide the range of approvals available through an ordinary council DA process. It is not surprising that the PORS process has been left on the shelf unused.
In 2014 when this Government was first elected, we committed to fixing the PORS framework to address its deficiencies and deliver a process for assessing major projects that is fit for purpose. Work began in 2015, leading to the release of a first draft of the newly named major projects process in 2017.
The first draft of the major projects bill, like the one being debated today, offered improvements over the PORS process while retaining the essential elements of independent expert assessment of regionally significant proposals. Key to these improvements is the expansion of the range of other approvals provided for under the one coordinated assessment process.
The consultation undertaken has clearly indicated that significant projects often require multiple permits addressing planning, environmental, historic heritage, Aboriginal heritage, threatened species and water and sewerage. Currently, only the Projects of State Significance (POSS) process provides for a single permit application covering all of these approvals. However, the time and expense involved in putting every significant project through the very lengthy and comprehensive POSS process would outweigh the benefits of the multi-approvals approach.
Without an 'in-between' process, project proponents must run the gauntlet of several separate approvals, each with its own time frames, or none, and the inherent risk of any one approval being denied at the end of a long and costly process.
The major projects process aims to test the fundamentals of a project early in the process to identify issues that could prevent it from being approved before significant time and cost is incurred. It does this by not just coordinating the relevant approvals by the normal statutory regulators but by requiring them to assess, at an early stage, if there are basic elements of the project that mean there is 'no reasonable prospect' that they can recommend approval under their respective legislation.
It may seem strange to promote a streamlined approval process for significant developments by indicating that the proponent might be advised of this 'no reasonable prospect' early on, but consultation repeatedly showed that proponents want to know that they are not going to waste time and money chasing permits which are never going to eventuate.
Similarly, the state can benefit by not having valuable council and state government resources tied up for many months, only to discover a fundamental problem that could have been detected earlier. For this reason, the bill provides for the minister to revoke a proposal's major project status if the panel or one of the regulators indicates that there is no reasonable prospect of it gaining approval.
The major projects bill retains some very important features of the PORS process, including the limited role of the minister in determining whether to declare a project and the assessment by an expert panel established by the independent Tasmanian Planning Commission. There is no capacity for the government of the day, or any vested interest, to influence who is on that panel or to change its decision. Again, people responsible for managing complex projects have told us that a process where an independent expert panel makes the decisions offers far more certainty than one open to political considerations, and is more likely to be used.
Before I turn to the detail of the bill, I want to talk a little more about its consultation and evolution. Some members of the community and, indeed, this parliament, have suggested the Government has sought to rush this bill through under the cover of the COVID emergency, but this is patently untrue.
The draft bill has been subject to three phases of public consultation. Two five-week periods of consultation were conducted, in August-September 2017 and December-January 2018. A further 10-week consultation was conducted from 3 March 2020 to 15 May 2020. This latest period was extended to compensate for COVID-related restrictions. When face-to-face meetings were not allowed, individual members of the public, professional groups and interested organisations could also arrange video or telephone briefings from departmental staff. In all, there have been three stages of direct consultation over three years and covering a total 20 weeks, which together elicited over 1500 responses.
The Government has carefully reviewed every one of these responses, including those provided on template forms or under a covering email from an umbrella organisation, and we have made further refinements to the bill as a consequence. Interestingly, many submissions from stakeholders opposed to the major projects process urged the Government to instead keep the current PORS legislation. However, the aspects of the major projects process they were typically most concerned about were those drawn directly from the PORS process, including: •
the role of the minister to declare projects against broad eligibility criteria; •
the ability to consider proposals that might not be allowed under an existing planning scheme; •
assessment by an expert panel instead of a local council; •
the final decision by that panel not being appealable to RMPAT; and •
the site-specific amendment of the planning scheme to reflect any permit issued.
The major projects bill replaces the current provisions in LUPAA that provide for the declaration, assessment and granting of a special permit commonly referred to as the Projects of Regional Significance process. The major projects process has three distinct stages: eligibility, preliminary assessment and assessment, and I will give a brief summary of these stages.
The eligibility stage is a basic test of whether a proposal is considered eligible to enter the process. Every project, no matter who refers it, is assessed against the same criteria and through the same process. There is no assessment of the merits of the proposal at this stage, just whether the proposal satisfies the eligibility criteria. The minister makes a determination of eligibility based on advice from the Tasmanian Planning Commission, state agencies and the relevant council or councils, and in accordance with determination guidelines which quantify the eligibility criteria.
At the preliminary assessment stage, the Tasmanian Planning Commission appoints an independent delegated panel. The proponent provides a project proposal to the panel and the relevant regulators for consideration. Each regulator then provides advice to the panel, either: •
a notice that there are no relevant matters for them to assess; •
a list of the matters that they will require the proponent to address in order to formally assess the proposal; or •
advice that there is 'no reasonable prospect' of them approving the proposal under their legislation.
Should a 'no reasonable prospect' notice be given, a proposal may be withdrawn and the proponent may modify the proposal and commence the process again. This early advice will potentially save the proponent from wasting significant time and money proceeding with a long assessment process with no prospect of approval.
The advice from the regulators is compiled by the panel and draft assessment criteria are produced. The draft assessment criteria are publicly advertised before being finalised. These assessment criteria cover all the matters the proponent will be required to address, and against which their proposal will be assessed.
In the assessment stage, the proponent provides a comprehensive project impact statement addressing all the matters identified in the assessment criteria. The regulators and the panel undertake a preliminary assessment of the proponent's project impact statement. It is important to note that each regulator undertakes the assessment in accordance with the requirements of its own legislation just as if the major project was any other application.
An initial assessment report is prepared which consolidates the advice from the regulators, including whether the proposal should be approved or not and the conditions that should apply. The assessment criteria, the project impact statement and the initial assessment report are then released for public comment and submissions invited from the community. This provides for greater transparency and scrutiny, as the public will be able to not only review and comment on the proponent's response to the assessment criteria, but also the panel's and regulators' initial consideration of that response.
Public hearings are then held. Following the hearings, the panel and the regulators are required to review their advice in the context of the submissions and the issues raised at the hearings and determine whether to issue the proponent with a major projects permit with conditions, or refuse the proposal.
I would like now to address some key elements of the major projects process in more detail. A major project must be for the 'use and development' of land, not just a proposal to amend a planning scheme, and must meet at least two of the three eligibility criteria set out in the bill, those being whether the project: •
will have a significant impact on, or make a significant contribution to, a region's economy, environment or social fabric; •
is of strategic importance to a region; or •
is of significant scale or complexity.
The Government's view is that projects with the potential to make substantial impacts on or contributions to a region should be able to be assessed by independent expert panels.
Some submissions expressed concerns that the panel's assessment could ignore important local planning requirements. The Government has listened and added additional requirements relating to local planning matters.
Prior to declaring a major project, the determination guidelines will require the Minister for Planning to have regard to any specific local planning controls that are in place. Where detailed local planning on matters such as building heights and city precinct plans has been incorporated within the planning scheme, the Government considers it appropriate that these are given weight in the consideration of any potential major project. The panel is also required to have consideration of these specific local planning matters when preparing the assessment criteria and also when making its final decision.
Another of the bill's safeguards is the requirement for the minister to consult with a range of people before declaring a project. These include the relevant local council and the other councils in the area of the project, state agencies, the Tasmanian Planning Commission, landowners and immediate neighbours. Any of these can provide reasons as to why the minister should or should not declare a project to be a major project.
Importantly, while a project can be considered even if prohibited under the relevant planning schemes, it must be consistent with state policies, the Tasmanian planning policies, further the 'sustainable development' objectives set out in the LUPA Act and cannot be inconsistent with the relevant regional land use strategy. If a project does not meet these thresholds, it is ineligible and the minister cannot declare it to be a major project.
Another feature of the bill is the requirement for landowner consent to be provided by a local council, the Crown or the Wellington Park Management Trust before a project can be declared. This means, for example, that the proposed Mt Wellington cable car cannot be considered eligible to be a major project without the consent of the Hobart City Council, as it owns the land.
Some submissions questioned the independence of the assessment panel and the role of the minister in selecting its members. I can confirm that under this bill, the assessment of projects is conducted by an independent panel established by the Tasmanian Planning Commission in the same way as under the current PORS process.
The bill provides direction for the commission to assemble the assessment panel so that the panel consists of a commissioner, or nominee, who is the chair, and at least two individuals who the commission considers to have the appropriate skills and expertise to conduct the assessment of the major project. The commission can also add up to two extra panel members where additional expertise and skills is required. The only role for the minister in this is to be able to specify the skill set of one of the extra panel members, but not to nominate who the member is.
Many submissions suggested that councils will be sidelined by the process and that communities will not be able to have their voices heard. While the assessment is undertaken by an independent expert panel established by the commission, there is an important role for councils and several opportunities for local communities to be involved.
The bill has been amended to increase consultation with councils throughout the process rather than relying on their representation as a panel member in the assessment process. Removing the requirement for a council representative on the assessment panel further ensures the independence of the commission's appointment process and reduces the risk of conflict between community advocacy and planning assessment roles, adding to the independence of the panel.
The bill has been further modified so that councils will be consulted as councils, not just in their roles as local planning authorities. This will enable them to represent views relating to all their local government functions and, most importantly, enable them to truly represent the views of their community. Councils will be consulted at every key stage, including before a project is declared, before the assessment criteria are finalised and during the assessment stage of the process.
Major projects rarely just need a planning permit. By their nature they may need multiple approvals relating to environmental, historic cultural heritage, Aboriginal heritage, threatened species and other matters. One of the problems with the current PORS process is that it cannot consider all of these issues at the one time.
This can result in two problems. A project that successfully obtains a planning permit may fail when it subsequently seeks a permit relating to one of these other areas such as Aboriginal heritage or threatened species, meaning expensive and time-consuming planning effort has been wasted. Alternatively, the regulators of these other matters may feel pressured into giving approvals because they are approached late in the overall process after the applicant has already invested heavily in the proposal.
This bill provides for a range of permits to be sought at the planning stage through a single application process, with coordinated, concurrent assessments undertaken by the normal regulators. Importantly, each of the regulators will carry out their normal assessment independently and feed that advice back to the assessment panel.
The bill makes it clear that regulators are required to conduct their assessments in a manner that is required under their own legislation, not to a lower standard, as some submissions have suggested could occur. Each regulator must recommend refusal if it is not appropriate to issue a permit under its own legislation.
There has also been a significant misunderstanding or deliberate misrepresentation of the extent of public engagement provided in the bill. The reality is that the major projects amendments actually increase opportunities for public engagement compared to the current PORS process.
There are four stages of community input into a major project. First, a range of interested parties have up to 28 days to advise whether they think the minister should declare a project. This includes the owner of the land, owners and occupiers of adjoining land, the relevant local council and other councils in the region, relevant state agencies and the Tasmanian Planning Commission.
Second, the broader community has14 days to comment on the draft assessment criteria prepared by the panel and regulators before they are finalised. The assessment criteria are the project-specific rules against which the project will be assessed by the independent panel.
Third, the public has 28 days to make representations to the exhibition of the proposal, the major project impact statement and the panel's initial assessment report based on the information provided at that point, including the preliminary advice of the separate regulators.
This provides for greater transparency and scrutiny, as the public will be able to not only review and comment on the proponent's response to the assessment criteria, but also the panel and regulators' initial consideration of that response.
Finally, interested parties have the opportunity to appear before the independent panel at a public hearing to follow up on a representation. Hearings are not specifically limited in duration. All persons who lodge a representation will be invited to appear before the panel.
The bill provides for a comprehensive and rigorous assessment process with no 'short cuts' or political involvement. The panel has the discretion to approve a major project or refuse it. If a major project permit is issued, the relevant planning scheme can be amended to remove any inconsistency between the permit and the planning scheme. Again, this is not new. It is consistent with the Projects of State Significance and PORS processes that we have had for years.
Some submissions were concerned that the major projects process could lead to broad changes to planning schemes which would allow other projects of the same type or scale to be approved under the normal DA process. This has never been the intention and the bill makes it clear that any amendment is limited to the specific site of the project.
Finally, I want to address comments regarding the inability to appeal the panel's decision on merit to the Resource Management and Planning Appeals Tribunal. The major projects process is consistent with the existing PORS process; there is no appeal on the merit of the proposal to RMPAT or any other body. This matter was raised during the debate on the PORS process in 2009, and the response to it then is still valid today. It is not appropriate to appeal the decision of one independent expert panel to another expert panel.
This is completely consistent with all decisions made by panels established by the Tasmanian Planning Commission, except where the commission acts as a planning authority under the Major Infrastructure Development Approvals Act, or MIDAA. Consequently, there is no loss of appeal rights from those currently in place under existing legislation because those rights never existed.
The point of appeals is to provide an opportunity for representors to be heard and for proposals to be tested by an independent expert panel. The bill provides for this in an efficient and accountable way.
The major projects bill is the culmination of a long process of analysis and drafting following three rounds of public consultation. While some will claim it aims to fast-track proposals and eliminate public scrutiny, nothing could be further from the truth.
This bill sets out arguably the most open and transparent approval process for major projects in the nation, while providing for all of the key planning-related permits in a single process. The bill balances time savings for proponents with adequate time for regulators and the independent panel to thoroughly assess a proposal.
Modelling of the time frames indicates that a full major project assessment would take about 11 months. The Government has taken advice from the regulators, local government and major industry bodies as to their requirements and expectations of the process and there is a consistent view that certainty of time frames is preferred over open-ended and unpredictable processes.
In conclusion, this bill will provide a robust, transparent and comprehensive process to assess the major projects Tasmania needs to rebuild and recover from the COVID-19 crisis through an independent process based on established planning laws and meaningful public engagement.
I commend the bill to the House.
Ms DOW (Braddon) - Madam Speaker, I rise to speak on the Land Use Planning Approvals Amendment (Major Projects) Bill. From the outset, I state that Tasmanian Labor believes the current planning process is far from perfect and we support the principle of the proposed planning reforms. I thank Brian from the PPU and Stuart and Leigh (TBC) from the minister's office for the briefing last week.
There is a need to improve the process for assessing complex projects across Tasmania and I note in this bill, the inclusion of the coordinated process across regulatory approvals processes.
It is also worth noting that the proposed major projects process is not about fast-tracking approval processes. Rather, it is about ensuring that highly complex proposals are able to be assessed on their merits by an independent panel. Furthermore, many major projects end up being taken out of the hands of councils and assessed by an expert panel on appeal.
The existing process is costly for both proponents and opponents of major projects and it also often leads to long delays, creating uncertainty for both parties. It is my understanding that this proposed reform aims to address this. I note that there is considerable community concern about the lack of appeals process in this bill.
Having major projects assessed on their merits by an independent panel will help make the process fairer, more consistent and take the politics out of planning. However, we will be proposing some amendments which I will outline later today but I have some copies to circulate to everybody.
This bill is all about the Liberal Government trying to demonstrate that they will eventually build something in Tasmania and attract investment, despite their appalling infrastructure and regional investment record. To date, they have not managed to build much at all. There are plenty of proposed projects, including underground bus malls, Derwent ferries, the Bridgewater Bridge, the Cradle Mountain upgrade, northern light rail and the Burnie port and the list goes on.
After six years, the Government has finally introduced this bill under the guise of economic recovery during COVID-19. The simple fact is it is going to take more than a major projects bill to rebuild Tasmania and create the economic activity that our state needs right now and over the coming years. Planning reform is but one of these priorities, albeit very important, and this bill alone will not create jobs in Tasmania.
This Government has no plan for our recovery and no plan to create jobs for Tasmanians. In contrast, Labor does have a plan to rebuild Tasmania and to work with our key industries, right across the state, to create jobs in Tasmania. This plan is our detailed COVID-19 recovery plan, which I hold up today.
In supporting this legislation, we will be calling on the Government to support the measures outlined in our COVID-19 recovery package, aimed at creating jobs and rebuilding a better and fairer Tasmania.
Our priorities for economic activity and job creation are outlined in this comprehensive document which was our submission to PESRAC. I note PESRAC has recommended a number of our initiatives to create jobs in Tasmania for adoption by the Government and it would be remiss of the Government not to do so.
Some of these job creating initiatives we are calling on the Government to adopt, are free TAFE and mandated numbers of apprentices on government jobs. When we finally see you build these Tasmanian infrastructure projects, we want Tasmanian jobs to be a priority. We want to see more Tasmanian benefits from targeted government procurement processes and a true approach to buy local and employ local by this Government.
It is important to note that all of these initiatives outlined in our plan were developed in consultation with industry and key stakeholders and that we will be working cooperatively with business, industry and other levels of government to create job opportunities in Tasmania.
The Government has used this legislation to wedge the Labor Party. It is not our responsibility to defend or provide information about the Government's bill. This is the Government's bill and it was their responsibility to communicate comprehensively with our communities. To date, a lot of the opposition to this bill has been aimed at Tasmanian Labor where it should have been aimed at the Government to ensure they amended bill to address community concerns.
It is also concerning, that the Government failed to include all of the submissions on the website. This demonstrates again the Government's inability to provide information and communication about this bill. We acknowledge that the Government has made some changes which has made some minor improvements to the bill which we support. These include removing the role of a council representative on the development assessment panel, enabling councils to participate and advocate freely on behalf of their community and oppose or lobby for an individual project.
Having previously been involved in local government - and I do not speak today on behalf of local government, I speak on behalf of my own personal experiences - I understand that councillors are not currently able to approve or reject projects on the basis of community sentiment but must act as a planning authority. This process prevents councillors from speaking out publicly, either against or in favour of development proposals, significantly limiting their ability to represent the views or interests of their communities whilst acting as a planning authority. I note that this change introduced to the final draft of the major projects bill is also supported by LGAT in my consultation with them. We hope that this enhances the role of local government in the process.
I note there is also consolidation of the eligibility criteria and there is further clarification about having regard to specific local planning controls, with the bill requiring the minister for Planning to have regard to any specific local planning controls, including building heights.
I wanted to ask the minister to further explain clause 60K(5), and the implications for this and 60P(2)(b) for local communities and the practicalities of how the inclusion of this in the bill will play out. What will it look like for those communities and those councils?
I note that proposed section 60C(3) now explicitly states that proposals must consist of a use and development and I also note that there have been considerable concerns raised about particular projects reliant on large-scale rezoning and scheme amendments.
The other point I note is in the Government's frequently answered questions brochure, or information leaflet, to the community on the northern regional prison project. On 18 June 2020, it outlines the following question and answer: Will the Government's Major Project Legislation be used to fast-track the prison? No, the Government will not be calling in this project as a major project.
However, there are still outstanding community concerns that the community believes have not been addressed as part of the third iteration of the bill. Our proposed amendments will look at ways to enhance the capacity of the community to participate in the process, strengthen public confidence in the independence of the assessment panel and improve transparency in the process.
Labor will not be drawn into the hysteria of the Greens nor the polarisation of the Liberals. We have approached this bill with a balanced approach, with an open mind -
Ms O'Connor - Hysteria? Because we are representing communities does not make us hysterical.
Madam SPEAKER - Order.
Ms DOW - We have listened to the concerns raised by the community and stakeholders and we have taken the time to identify areas for improvement in line with these concerns. Perhaps the lack of communication and complexity of the bill presented by the Government has been deliberate to foster uncertainty and division in the usual wedge political style of this Government. This further substantiates Labor's belief that this bill will take the politics out of planning which we believe can only be a very positive development.
The Government has done an appalling job communicating the changes proposed in this legislation to the community. This has led to significant concerns and some misinformation and understandable confusion about the planning process which has been proposed. Stakeholders have seized this opportunity to highlight their concerns and fill this void of useful and constructive information from the Government.
This brings me to the history of the bill which is an important part of this proposed legislation. In 2009, the Projects of Regional Significance process was introduced by the then Labor government. This process was to address the gap between the DA process and project of state significance process and I will read a couple of excerpts from the second reading speech at that time -
Projects of Regional Significance introduces a completely new project category and assessment process into the state planning system. Whilst we have the traditional Land Use Planning and Approval Act assessment process it is essentially designed to deal with local projects with local impacts in individual council areas.
Mr Speaker, it should be acknowledged that on occasions when a local project is considered to have an impact on an adjoining council area the councils involved sometimes get together to consult on a particular project but there is certainly no legislative guarantee or requirement for the level of consultation to occur. More importantly, there is no statutory requirement for a council to consider the wider regional impacts that a particular project might have.
And that sets the scene for the introduction of that legislation all those years ago. As has been noted by the minister, to date the process has not been used.
The Liberals came to office in 2014 with a commitment to introduce the major projects legislation. The Projects of Regional Significance legislation was to be reviewed after five years. However, this did not occur either. We think there is merit in this current bill before the House being reviewed independently in the future. I will discuss this more in my proposed amendments.
As you will note from the key features of the original bill which the minister outlined, there was included the ability of the planning authority, minister or proponent to refer a project for referral to be assessed as a project of regional significance. This project would then be assessed by an independent panel and, as noted, there was no right of appeal included in the pause process. The fact is, the pause process could have been used over the last 11 years to assess a project of regional significance in Tasmania but it has not.
The point I make today is that the major project legislation is not unprecedented. Many submissions and representations received on this bill had concerns about this. Six years on and three iterations later the Government has introduced this complex bill which will replace the current Projects of Regional Significance process. My research indicates that the bill contains twice as many pages as PORS and every review of it has made it more complex and quite technical. In fact, this was one of the concerns raised in a number of submissions, including, I believe, in the submission by the TPC.
This sums up the Liberals' planning reform efforts to date: the Government has failed to create a fairer, simpler and faster planning scheme in Tasmania. This leads me to some points on the current planning system in Tasmania.
Planning in Tasmania is undervalued and under resourced. While the Government spent six years reworking this bill, its work and focus could have been on strengthening our system, developing our planning policies and setting a values proposition for the Tasmanian community. Tasmania has changed significantly over the past six years.
I have had feedback from southern councils regarding their concerns for the need to review and update the Southern Tasmania Regional Land Use Strategy. This work is critical to the future development assessment in the state. It may be currently holding back developments.
I will read from LGAT's submission to PESRAC and note a proposal to improve planning resources in the state, This has great merit and identifies some of the issues around planning in the state.
Our proposal is to establish a single local-government-owned authority to deliver high order planning and environmental health services to councils.
This model would involve regional hubs to allow proximity to council premises and cost-effective site visits and community access to work alongside and build capacity of locally based council officers, who are at an early professional, or paraprofessional stage.
Having a central repository of senior/specialist planners available for use by councils could enhance the capabilities of smaller councils through: •
assistance with advice, discussions and assessments regarding controversial or significant development proposals and applications; •
assistance with energy supply applications such as wind farms; •
targeted advice and/or assistance with longer term land use issues and plans for the municipality, including consideration of Tasmanian planning policies; •
help to process permit applications and planning scheme amendments in peak periods to enable councils to meet statutory timeframes or when council planning officers are not available; and •
preparation of draft submissions/presentations to the TPC or RMPAT.
We believe there is an opportunity for a similar role to interface with the community but also with proponents to provide independent advice and assistance to both of those. That is a gap that is missing. Councils are often not able to fulfil that because of their role as a planning authority. There may be perceptions of bias if they are giving out advice. We would like to see that considered as part of this overall proposal to strengthen planning resources across the state.
I make reference to the last part -
While the ultimate model would include shared services for both planners and environmental health officers, it is considered that planners should be the initial focus, as construction and development has been highlighted as a key focus for federal and state governments in our economic recovery, with a number of facilitatory stimulus measures having been introduced.
Approval timeframes and ‘red tape’ are often cited as barriers to projects commencing, and while this is not always the case, the number one impediment to local government approving development more rapidly currently is a shortage of planners. This shortage risks becoming a major factor in delaying the extensive construction plans of our state and federal governments.
I thought it was important to include that in today's debate.
I will finish with a number of questions related to issues raised in the submission. The first is in proposed sub-clause 60ZZM(4)(c) 'the project would not be in contravention of a state policy'. The TPC submission and other submissions have questioned that terminology in that it should read 'consistent with' rather than 'in contravention of'. Why was consideration not given to changing that?
This further question relates to that sub-clause. If the proposed project is on Crown land or Wellington Park does it have to be consistent with the relevant management plan? My last question is on public exhibition of each aspect of the documentation that is included as part of the consultation process and being exhibited for feedback. Where will those documents be exhibited? How will they be made accessible to the community? Will there be a role for local councils to play in providing access to that information or will it predominantly be the role of the TPC? I am thinking about more regional communities that are not based near Hobart. Councils might be a better place for that information to be shared and accessible to the public.
We have proposed five amendments to the bill. We are looking at ways to enhance the capacity of the community to participate in the process, including a further examination of a right to appeal, strength and public confidence in the independence of the assessment panel, ensuring transparency regarding political donations and ensuring regular reviews of the legislation are undertaken.
I have circulated the amendments and we would like to move into Committee to debate and put our amendments. This bill is about the Government trying to demonstrate that they will eventually build something in Tasmania and attract investment, despite their appalling infrastructure and regional investment record. To date they have not managed to build much at all. There are plenty of examples which I alluded to at the beginning of my contribution this afternoon.
The Government has had six years. They have finally introduced this bill under the guise of economic recovery during COVID-19. It is going to take more than this bill to rebuild Tasmania and create the economic activity that our state needs now and over the coming years. Planning reform is just one of these priorities. Although it is very important, this bill alone will not create jobs in Tasmania.
The Government has no plan for our recovery and no plan to create jobs for Tasmania. Labor does have a plan to rebuild Tasmania and to work with our key industries to create jobs in Tasmania. That is our detailed COVID-19 recovery plan, which I talked about earlier in my contribution. It is solely aimed at creating jobs and building a better and fairer Tasmania.
We agree with the intent of the legislation and have given our reasons for our proposed amendments, which I am hopeful the Government others will give due consideration to during the course of the debate today.
Dr WOODRUFF (Franklin) - Madam Speaker, Tasmanians are passionate defenders of their place. They will always stand up for their publicly owned heritage, unique wild places, and the way we like to live. The original custodians of lutruwita/Tasmania, the palawa people, have treasured and cared for our island for time beyond what we can imagine. Public land should be protected from privatisation. Its value should not be lost, our exclusive access should not be gifted to corporates.
Tasmanians do not want their landscape and lifestyle changed beyond imagining without having a proper conversation and agreeing to it first. We have a history of governments laying out the red carpet for corporate [inaudible]. We have seen cronyism, syphoning public money to corporate mates, secret deals, purpose-designed loopholes, fast-track laws. You only have to look back at the pulp mill legislation. Both Labor and Liberal parties have form in this area.
In 2014, the Liberals appointed the former CEO of the Property Council to take a hatchet job to the Tasmanian Planning Scheme and rewrite it under the guise of making it simpler, cheaper, faster and fairer for developers. The result has been a new planning scheme that makes it almost impossible to protect local character and values, even when they have been enshrined in a local plan designed by the council and the community together and signed off formally by the Tasmanian Planning Commission, which is what happened in Kangaroo Bay.
We have lost the ability for the community to have a meaningful say about what developments happen where they live or the public places they love to spend time in. It has given us even weaker protections for the environment, heritage, amenity and local character and, let us face it, they were already pitifully poor.
When they came to office the Liberals also set up the Office of the Coordinator-General and handed that person the job of auditing all the Crown land across the state and selecting the special places that could be offered up to developers at a cheaper rate. Add to that the expressions of interest process for tourism developments in national parks, reserves and on Crown land, which opened up our protected wilderness for exploitation and also were run through the opaque Office of Coordinator-General's so-called processes.
In the last three years we have seen a flood of development proposals for Crown lands, including in national parks, World Heritage Area and nature conservation areas. The Office of the Coordinator-General has actively solicited investors to apply through secret tendering processes under the cover of commercial-in-confidence to develop our public land that has never before been available. What we have seen is a feeding frenzy of private investors rushing to snap up some of the last free real estate in Australia.
Ms O'Connor - Rent-seekers.
Dr WOODRUFF - Yes. The irony is that while it is convenient for local communities to be painted as anti-development by the Government - and typically all the people who put submissions in from organisations and communities around Tasmania in relation to the bill are painted time and again as being anti-development - the irony is that in most cases the community themselves are keen for some development, but they do not want it on steroids and they do not want it without the idea of what is being traded away in their name. They want to have a conversation.
For example, the hotel that has been approved for Kangaroo Bay under the pretence of being a hospitality training centre was once Crown land but is now owned by the petroleum company Shandong Chambroad. That deal happened after President Xi Xin Ping's visit to Tasmania in 2014 at the invitation of the Liberals and after the Coordinator-General flew to China multiple times to drum up developments in Tasmania.
The Bellerive community want a development on the foreshore but they have been vocal in their outrage at a hotel that will be far higher than the planning scheme allows. It blocks access and views of the water and kunanyi for residents, along with the planned public open space that contravened their existing planning policy. It does not meet any of the community's real needs because it is still sitting there unbuilt and is about to come up again in October for the developer who has not made a substantial start. The community will certainly be hoping that something decent can be negotiated if that development disappears and there can be a real conversation with people about what they want in their backyard.
What has happened at Kangaroo Bay typifies the lack of trust and transparency that unfortunately communities around Tasmania have in the development and infrastructure approval processes. All the arrangements for that development were secretive and the DA was handed in a week before Christmas in 2016 just to make it as hard as possible for people to get expert advice and make a submission. Shouldn't that be something that was changed in this bill? Shouldn't we have an amendment to LUPAA that makes it impossible for a developer to submit a major development application the week before Christmas? It is a disgraceful situation that makes a mockery of proper consultation. It is little wonder that Tasmanians have responded in droves to this bill's consultation with a resounding no.
I want to come to the submission process. We were informed that there are in fact 1755 individual submissions that have been made to this major projects bill as part of the consultation draft document, but only 1549 of them have been made available to me as a legislator and every other member of this House to view and understand the concerns of people who have made those submissions. A total 206 submissions, 12 per cent of what was received, has not been published on the Department of Justice's website, despite the fact that some people sent these submissions in months ago.
This is beyond appalling. The minister has the machinery of his department. If this Government continues to be so incapable of posting material and submissions on their websites, people have to ask - and the Greens have asked - what is going on here. This is not only happening on this bill or for this minister, it is regularly the occurrence that the department will only put up submissions for major bills a day before, or not even on the day, the bill is being debated.
Here we are where 98 per cent of the submissions we have been able to see of the 1549 were vehemently opposed to this bill, while only 12 submissions, which is less than 1 per cent, supported the bill, but we have to be clear that eight of those 12 submissions were from organisations who have a vested interest such as the Department of State Growth, TasNetworks, the Housing Industry Association, the Minerals and Energy Council, Cement, Concrete and Aggregates Australia, the Master Builders Association, the tourism industry and TasPorts. We have four submissions out of 1549 that were against this bill and did not have a vested interest. What a joke of a consultation process this has been.
The Greens would be the last party to say that the current planning scheme does not need improving. It absolutely does. We voted against the Tasmanian Planning Scheme when it was introduced in 2015, the amendment to LUPAA, not because we do not want consistency and certainty in planning legislation or cheaper, fairer and simpler planning laws. We do. We voted against the TPS and we will vote against this bill because at its heart, they continue the history of the Labor and Liberal parties working with big industry and developers to weaken the ability of our regulators to protect our environment and Aboriginal and built heritage.
This is what we need to do to protect our growing national and international reputation as a significant natural gem. Our Aboriginal and built heritage and our natural environment are a huge part of the state's economy now and the wellbeing of residents and they are part of our global treasure for which we act as custodians on behalf of every person on this planet, now and into the future.
This bill continues the progress of removing appeal rights and government accountability about the most controversial decisions. It is the most recent addition to the suite of planning laws that tries to shut out community dissent on divisive proposals, particularly ones that have a major outreach factor, even if they are not actually major in size.
The Government has been pitching this legislation as essential for the road to a COVID 19 economic recovery as if it is the only way that so-called complex developments can sensibly be approved. That is just not true. There are already three pieces of planning legislation, the projects of state significance, the projects of regional significance and the major infrastructure development approvals, that can be used to do what this bill does. They all deal with different projects of different scale that cross multiple council boundaries, but none of those would make it as easy as this bill does to green-light the planning process for companies that are pushing controversial developments through against strong community opposition.
This bill means that controversial developments that have already been through a council planning process and been rejected, or those that were approved by a council but have had that decision overturned through an appeal process or those that are currently prohibited developments within a planning scheme, can be called in and assessed under this legislation.
For example Cambria Green could be considered, the large-scale inappropriate development complex outside of Swansea, and despite a rezoning application for the proponent's land having been rejected by the Tasmanian Planning Commission, it could still be submitted under this major projects bill.
The Hobart City Council and the community have been crystal clear that they do not want public land to be used for a cable car on kunanyi/Mt Wellington, but even if the council rejects the current DA it could still be assessed under major projects, despite what the minister says.
Hobart residents have waged a fierce battle for the past five years to protect the character of the city and the mantle of kunanyi from being overwhelmed by skyscrapers. Hobart and Launceston are heritage-rich cities that contain more intact old buildings than elsewhere in Australia. Our cities have human scale and an intact aesthetic that delights visitors and gives the residents daily pleasure.
Once skyscrapers start, it opens the door to a flood of developers who want to jump into the same space. We have only to look at the docklands in Melbourne to see a chilling example of what is happening in other cities in Australia.
When the Premier was the Planning minister in 2017 he said:
I don't support skyscrapers but it's not for me to call them in, it's for local government to utilise the tools available to them which this Government has made available to manage the way these things develop.
Well, hasn't he changed his mind, Madam Speaker? Here we have a bill which apparently could be used to call in a skyscraper development if it gets knocked back by the city council. The previous premier, Will Hodgman, in 2018 also said that the Hobart City Council 'should have the ability to put a sensible and practical hard ceiling on maximum building heights'. Wouldn't the people of Hobart like that to be true? That is what they want, but this bill makes it possible to override any hard anything in a planning scheme - anything that is prohibited, anything that is definite, anything that is prescribed, any local specificity has to be looked at but can be overridden. It does not have to be maintained. The bill before us gives no assurance to residents who want their council to agree to building height limits and then have them kept.
The Clarence City Council invited tenders to develop Rosny Hill in 2014, even though they had never consulted their own community about its views were on how they wanted to have this loved and heavily used public space developed. The council went ahead and approved a 60-room hotel, two restaurants and café on a crown land nature conservation area which is surrounded by suburbs.
The community is appealing that appalling decision to the Resource Management and Planning Appeals Tribunal and are in the process of fundraising the cost, which will be in tens of thousands of dollars through community effort, but under this bill, if they win, that development could theoretically be submitted again as a major project, although I believe that the proponent in this instance has said that he would not go down that path.
The community of Westbury is deeply concerned that this bill would enable the prison proposal to be ripped out of the normal planning scheme approvals and treated to a fast-track assessment. The new proposed location was not on the original list of possible prison sites and has been protected as part of the Tasmanian and Australian reserved forest estate. It is a precious bird and devil habitat amongst fast-disappearing connected land.
This is a community that already knows too much about having little say about what is going to happen in their own backyard. Members of government might like to groan and think we are overstating the prospect of these things happening, but you only have to look at the fact that this is already being proposed on a Tasmanian reserved estate and it just goes to show that under this Government and the planning laws that have been constructed and this bill which is being proposed, nothing is sacred, nothing is really protected.
This bill has so many details and problems in it, not least of which is the time frame for the consultation and the complexity of the legislation. Planning legislation is some of the most lengthy and complex of all and we have some comments that I want to read from the Tasmanian Planning Commission on this bill. The Tasmanian Planning Commission will be given a major role in the major projects bill because of their responsibility to oversee the assessment process.
Mr Jaensch - Thank you for acknowledging that.
Dr WOODRUFF - A major role, not the only role. The minister has plenty to say about it too. We will get on to that. However, the Planning Commission said that:
The drafting style of the bill is extremely prescriptive, complex and at times circuitous. It is difficult to follow and contrary to the desired outcome of simplifying processes and procedures, it confounds and compounds the levels of complexity.
I am very grateful to the Planning Commission for making that statement because that is exactly how I felt when I read the bill. I was starting to wonder if I was going a little bit nuts trying to work through some of the components of this bill. It is some of the most torturous legislation I have had to read. The commission has further commented that:
With this prescriptive style of drafting is a significant increase in the legal advice and administrative support required to give effect to the statutory process. This increase in administration has the potential to slow assessments. Notably, the risk of errors occurring in what may be considered administrative steps contained in the legislation has increased.
Madam Speaker, there you go. The body that is responsible for overseeing this development assessment process for major projects thinks that this is a dog of a bill and it is going to make their process longer and effectively more expensive. Longer processes cost more and it will be slower for that reason and more obtuse.
Ms O'Connor - But the fix is in through the TPC review, Dr Woodruff.
Dr WOODRUFF - Thank you for reminding me, Ms O'Connor, that all of this bill is coming before the Tasmanian Planning Commission review results come in. The Tasmanian Planning Commission itself is under review right at this moment by the same Government who is bringing this bill in, so who knows what is going to be in the changed Tasmanian Planning Commission Act? Who knows how they are going to be constrained and directed? We are deeply concerned, along with so many other people in the community, about the very unholy timing of a Tasmanian Planning Commission review at the same time as this bill, both during the COVID pandemic height and at a time when people had the least ability to provide the focus they needed. Despite that, so many people made the effort.
It is not just the Tasmanian Planning Commission who has made these points about the complexity of the legislation. ABC news reported last week that a policy adviser within the Parks department has privately criticised the state Government's controversial bill as 'overly complex and failing to actually speed up assessment processes'. The leaked email the ABC reported on showed a manager within the policy branch of DPIPWE questioning what, if any, advice previously provided by the department has been incorporated into this bill. Commenting on the draft legislation, the manager said:
From a quick scan of it now, it appears overly administratively complex. There is no clear demonstration that the bill will actually provide any efficiencies over the current legislative framework.
The person added that it was unclear how the proposed amendments would apply to reserve land - in general terms, land that has been protected - and said the department has not been consulted on the laws since 2017.
When the minister went on at length before about the extensive consultation process for this bill, let us not forget it was a thought bubble in 2015, it was talked about in draft form version 1 in 2017, and we saw the first draft of the bill which the minister likes to suggest was effectively the same as the current 209-page draft. The point is that people are only now seeing the final words, which is what people only got to look at during COVID 19 for a short period of six weeks. Unless they get to see the actual words they cannot comment on generalities and people have never had a chance to look at this legislation until that very short period. Shame on this Government. That is not a consultation process.
In addition, just for the record, that consultation process provided no clause notes and no fact sheets. It was a 206-page bill released for public consultation without any accompanying
material nothing to support the complexity of the bill which we have on record now the Planning Commission thinks is a turgid document, my words not theirs.
The bill overrides the longstanding Land Use Planning and Approvals Act and makes a mockery of the Liberals' claims that they have created a planning scheme that provides certainty and hard limits, which is what developers wanted. That is what the community want; they actually want certainty. This throws it up in the air and makes it all open again. This is hardly where we want to be at this time.
The choice of membership for the development assessment panel can be directed by the minister and it leaves the door wide open to the potential for political influence. The bill fundamentally fails at its core because it removes an essential right to appeal. People will not be able to appeal a major project decision to the Resource Management Planning and Appeals Tribunal.
This is the usual pathway for appeals under LUPAA. This is an amendment to the Land Use Planning and Approvals Act. People ought to be able to have the same rights under LUPAA for a major projects approval assessment process, as they do anywhere else. We do not accept the minister's view in this regard. The only available pathway then for people through a major projects bill is a judicial review to the Supreme Court. That would be a case that would be taken on procedural grounds but not on matters of planning substance or the merits of the development.
The COVID-19 pandemic has been unsettling communities across the planet. Right now, Tasmanian industries that are the backbone of so many jobs are in a state of freefall. Many people, especially young people, are full of anxiety. People are desperate to see fair processes operating in development decisions. They want the balance to favour a community's interest instead of weighting things all the time to big developers. The pain and destabilisation that COVID 19 has forced on so many people have given us pause to assess what we value the most.
We have had the opportunity at this point to shape our future in the most positive way and the door is open to make decisions that will set this state's course for generations to come. Large and controversial developments, by definition, have more significant impacts on the natural world and our collective future. We really need to see laws that expand the democratic processes underpinning major planning decisions instead of unstitching them.
This is the time for unity and building trust. People want government institutions that have their back; not ones that stonewall or hide information about public land or about government stuff-ups. People can see secret deals being made everywhere and abuses of power and they can see we have a planning scheme that gives them almost no levers to object to a development except through expensive private litigation.
People want planning processes that are incorruptible, fair dealings between parties, and an appeals process for major developments that does not start at $50 000. People were very concerned recently about the role of lobby groups and influencing decisions of ministers. When they saw the CEO of the Tasmanian Hospitality Association publicly thanking the secretary of DPIPWE, Tim Baker, for helping get a bunch of workers through the COVID 19 essential workers exemption process, people asked the obvious question: did the secretary give them special treatment? This is a serious question, a serious matter to ask.
When the Greens did an RTI of the process and we saw that the CEO of the THA said, 'hey mate, can you help me with this?' with a smiley face emoji for the Hansard. This is not the sort of relationship that people want between ministers, departments and big developers. This is not an appropriate process. We need to see an end to the special relationship and the processes that can be corrupted by money. The Liberals received $4.1 million in donations in 2017 18, including hundreds of thousands of dollars from poker machine groups -
Ms O'Connor - They were just the ones that were declared.
Dr WOODRUFF - They did not declare $3 million in those donations because they came below the threshold that is required to be reported of $13 800. We have to have donations reform. There is a lack of transparency around political donations and secret and vast sums of money are being funnelled in to support the Liberals, and the Labor Party, by third parties because they cannot be traced.
We did have the THA funding the Liberals before the election for $160 000, and Kalis Group, who got the special exemptions for essential workers to finish off the Crowne Plaza, and for the public relations person to come to the launch. Those people also funded the Liberals. This is the sort of relationship people can see. This is the sort of relationship that builds a lack of trust and this is what people want to stop.
The Greens have a strong position, and we act on our position every day, with political donations. The Labor and the Liberal parties both talk but do nothing. Until that changes, we cannot have confidence in the relationship between lobbyists and big developers and ministers. We have to have laws that make sure that we keep them as far apart from each other as possible.
To be clear, the Greens do not support this bill. We do not support the principles it is based on. They are corrupted and they are undemocratic processes. We do not support the removal of the little that remains of the community voice and protections for the environment and heritage. The bill is a recipe for continuing anger and division around planning issues and at a time of COVID-19 recovery, we should be focused on uniting us. This bill contributes nothing of value in a post-pandemic Tasmania.
Ms OGILVIE (Clark) - Madam Speaker, I also rise to make a fairly contained contribution in relation to the Land Use Planning and Approvals Amendment (Major Projects) Bill, which is ostensibly to refine the assessment for major projects, the assessment process.
The Government's major projects assessment process will replace and ostensibly aims to improve upon the current Projects of Regional Significance process. It retains many elements of PORS but adds an additional fatal flaws test with increased certainty in regards to time frames and provides coordinated assessment by a number of statutory regulators.
I understand the foundation for wanting to improve processes. The minister and I do not always see eye to eye, but we love a good process. Process improvement is good. The real question is, is this the way to go and have we done enough consultation?
The new assessment process does not seem to provide fast-tracks or shortcuts. It does have a fairly tight context within which something can be declared a major project. But of course, given that it is new legislation and does change the landscape within which decisions are going to be made, questions of scale, complexity and strategic importance will need to be fleshed out so that we know exactly what sort of projects might fall within this bill.
I have a great deal of sympathy with the previous speaker's commentary, particularly around trying to do consultation during COVID 19 times. It is something I contacted the minister about during COVID 19 times. I know that for some people, because it is all about context, and I welcome our planning community members, who I think are watching from upstairs.
For some people, COVID 19 time was a time when they had extra time on their hands, when it was possible to do things, like start a new degree, do a lot of reading, get online. But for people, perhaps more so like me in my house, it was a time of three children unexpectedly at home and a husband off work. It was, in fact, a very intensely busy and difficult time and I certainly felt it was difficult, particularly for working mothers, to be able to focus attention on things that were relevant to them and their property rights and relevant to the way they see and view the common land in Tasmania and have a fair say on that. If their houses were like mine, it was difficult and I raised that at the time.
It is intensely complex legislation, as all planning law is. There is a multitude of threads of processes that coalesce around particular projects and processes, and not being a planning lawyer but having some experience in the law and with legislation, I can say it is a fairly weighty tome in that regard, so there is some complexity to it.
I always try to err on the side of more, rather than less, consultation. The community engagement piece, particularly around developments and planning and anything that affects from the back fence through to what happens in our national parks, is of great interest to those who are adjacent or use those areas.
There is a world of difference between doing things in our national parks and heritage areas that is related to amenity and infrastructure level work that everybody who visits may need, such as the issues we have had at Bruny around facilities. I think about my beloved road up the mountain built by my great-uncle and grandfather in the Depression era - similar times. Those sorts of access projects and the capacity we are providing to people to exercise their right to enjoy Tasmania seem to me to be a little different from what one would think is a major strategic project.
The cable car has been mentioned a few times but I accept the minister's point that it is really now a function of the Hobart City Council. I had been intending to request some further detail on how that project might sit within this bill, but I accept that is the case although we will be watching that very closely. The people of South Hobart want to be heard on this. It is important and I do not believe it is whingeing about what is happening particularly in a certain area with a particular project. The people who live in South Hobart, and it happens to be my local suburb as well, are very concerned about traffic and the real impacts. We have aged care facilities, kindergartens, childcare centres and two schools on that strip of road. That is a real thing and there can be a lot of binary debate around projects - black and white, yes or no - but in the centre are people and how we live and rub along together. We want jobs but we also like the amenity of where we live. To me, it is important to be doing as much listening as possible, to over-listen, if that is possible.
I will say a couple of words about the red-tape issue; I know that has been mentioned a few times. We love to use the words 'red tape', but what we are really talking about is unnecessary regulatory burden. We have to be careful about that because a lot of what we do in regulation, and particularly subordinate legislation, is about safety, good decision-making and keeping the parameters around those decisions in place. Until we start measuring regulatory burden, measuring red tape in a way we do in the federal sphere, we cannot actually manage it. If we are not measuring it, we cannot manage it. We do not know whether it is going up or down because we do not know what its position is.
Previously I put forward some suggestions with a process that could sit within the Subordinate Legislation Committee around how we could implement a similar local process for that regulatory burden issue, but there is a lot of value in removing duplication. This bill tries to do that and that is a sensible thing to want to do.
We are looking for a holistic approach that balances the rights of landowners and people who use our common areas with those who may want to get projects going, and to make it fair for proponents as well so that they will know early on during the proposition process whether they have a real chance of getting things up or not. It is not in any of our interests to let people waste money when that does not need to happen.
I have read the bill a couple of times and I know we have amendments to come. I will briefly turn to those in a moment, but I am interested in the issue of community engagement. It does seem to me that built in to the process there is community engagement steps, although it is a little confusing to me so perhaps the minister might be able to flesh out exactly what that looks like. I understand a notice might be given to a neighbour so they can get engaged in the process, but it has been my experience in my legal practice and career that unless a person who is affected by a proposal in a major project has access to legal advice it is very difficult for them to navigate the system, particularly if on the other side there is a major developer. This is just a question of the balance of power between somebody who might happen to have, say, a farm if a big development is happening next door or even lives adjacent to a major development proposal or site, just balancing out that conversation so that the person or people whose property rights are directly affected can have access to some support.
Going forward I would like to see additional money go into the system, whether it is through the EPA or the Community Legal Service or some other organisation, for some pro bono legal assistance for people who are trying to navigate the system. I have to tell you as somebody who has read a few bills in her life, this one is pretty heavy going and it might be a bit difficult for some people who maybe directly affected to be able to work their way through that. I am keen to promote a little more support for those who are going to try to work through that.
During the second reading speech I received a copy of the proposed Labor amendments. I believe we will go into Committee so we will work through those then, but I would like to capture their essence as I see them. I have read them very quickly. One is around donations and gifts and declarations of conflicts of interest, all worthy stuff. Perhaps a couple of them might be unworkable in practice and I wonder whether they should actually be amendments to the Electoral Act. The proposal is sensible; I wonder if it is in the correct act. The other one is the appeals process, but no doubt we will go through those in detail.
I have also had the opportunity, again on the fly in the Chamber, to review amendments that have been proposed by Dr Woodruff. There is one I have a bit of an issue with but the rest I am very happy to work through in Committee.
I will leave it at that. If there were to be steps towards further inquiry and communication, consultation, I am always warmly supportive of that. I look forward to going through the clauses and hopefully it will be an interesting afternoon doing that.
Mr STREET (Franklin) - Madam Speaker, I am very pleased to speak in support of the Land Use Planning and Approvals Amendment Bill 2020. It is my view and the view of this Government that one of the cornerstones of Tasmania's road to recovery from the COVID 19 pandemic will be our ability to attract and support significant investment in large, complex, job-creating projects that will provide economic stimulus and generate long-term opportunities for our state.
We will need large-scale infrastructure projects, energy projects and industrial projects. It will be important that these projects are well planned and thoroughly assessed through a rigorous and comprehensive assessment process that is appropriate to the significant scale and complexity of these projects. This is a critical point. One end of our planning system provides for the assessment of a standard development application by the relevant planning authority in accordance with the provisions of their planning scheme in a 42-day statutory timeframe. At the other end we have the Projects of State Significance process, a comprehensive two- to three-year integrated assessment undertaken by the Tasmanian Planning Commission which can provide a proponent with all the necessary permits and approvals that will allow a proposal to proceed. Then we have the missing middle - the Projects of Regional Significance - PORS - assessment process.
PORS should provide for a rigorous, comprehensive assessment process for those projects that are not of such significance to our state as to be considered a project of state significance, but which may be of a certain scale, complexity or regional significance so that they should be able to be elevated beyond the assessment of a council bound by the provisions of its planning scheme. Yet in the 11 years since it came into effect following bipartisan support from the Liberal and Labor parties, PORS has not been used once. You would have to ask why? There are many reasons. For a start PORS may be rigorous but unfortunately is not comprehensive. PORS does not even provide a proponent with the same assessments and considerations as a standard development application. When you factor in the substantial upfront fees, the vague and uncertain times, and the ill-defined process you can begin to see why it has never been used.
The Government is committed to reviewing PORS and replacing it with a better process. Major Projects is that better process. Major Projects is an evolution of and improvement on PORS. It is a series of amendments to section 60 of the Land Use Planning and Approvals Act 1993. Major Projects makes PORS work more efficiently and effectively. It does not take anything away, it does not erode anything and it does not create any new powers.
Major Projects retains many elements of PORS, including ministerial referral, an independent expert assessment panel appointed by the Tasmanian Planning Commission and judicial review. However, it is a more clearly defined assessment process that coordinates a far greater number of permits and approvals within set time frames to provide additional value and certainty of process for proponents while increasing opportunities for public involvement. Major Projects is the assessment process we will need in the future.
Major Projects is the process, for example, that will be used to assess the Bridgewater bridge replacement project. This is a project of strategic significance to our state's south and the centrepiece commitment of a capital city deal. It is a project that impacts on three local government areas as well as an unallocated area of riverbed. It is a project that is going to require a number of complex assessments and permits under a number of acts. This is a project that is clearly going to be eligible for declaration as a major project. Major Projects is the only process through which the Bridgewater bridge replacement project can be assessed in a rigorous, comprehensive and timely manner. Major Projects will elevate and consolidate the assessment of the Bridgewater bridge project from three councils to an independent expert panel appointed by the Tasmanian Planning Commission.
Major Projects will coordinate the assessments of a range of required regulators including the Environmental Protection Authority and the Tasmanian Heritage Council to provide the proponent, in this case the Department of State Growth, with an opportunity to be granted a single consolidated permit. Major Projects will provide certainty of process and time frame and Major Projects will provide for scrutiny from and engagement with the community.
I find it concerning and disappointing to have read in our daily local paper and on social media so many ridiculously alarmist and outlandish claims about Major Projects. It is a process that simply updates and improves upon the current PORS process. It contains nothing new and is consistent with other assessment processes under the Land Use Planning and Approvals Act 1993.
While I firmly believe that everyone is entitled to express their own opinion, I also believe that if you are going to dress that opinion up in the guise of expertise there is an obligation to tell the truth, to represent the facts and not simply spout sensationalist propaganda that has little or no basis in reality.
Dr Woodruff - When people only get such a short amount of time to look at 200 pages, they might not have got it perfectly right. It might have been hard to get it perfect.
Madam SPEAKER - Order, let the member make his contribution in peace, please.
Mr STREET - Again, Dr Woodruff asking for a standard of behaviour from the rest of us that she cannot actually apply to herself in this place. What a surprise it is that she would be interjecting when she was heard in silence by everybody else in here.
It is clear that in their ongoing public misrepresentation of the Major Projects process these people and groups have no interest in due process or procedural fairness. By attempting to deny proponents an opportunity to have their proposals given a fair hearing and assessment on their merits, they are not only showing their anti-development prejudice, they have little or no regard for the majority of Tasmanians who care about Tasmania and want to see this state prosper and who are sick and tired of being told what they do and do not want by a vocal minority.
I suspect that the real reason we have seen such a concentrated campaign against Major Projects is that there are those among us who would rather have a protest than a process. It is clear that those who feel threatened by the Major Projects process recognise that Major Projects, in its independence, comprehensiveness and rigour is a statutory assessment process that is free from lobbying, a process free from political interference and a process free from vexatious appeals from the anti-this and anti-that brigade.
Major Projects is nothing to be scared of. It is simply an evolution of and an improvement on the current Projects of Regional Significance process. It is an independent, rigorous and comprehensive statutory assessment process. Major Projects is a process that this state needs. Tasmania's road to recovery from COVID-19 will be built on a foundation of large-scale construction projects, whether they are bridges or wind farms, transmission networks or a university campus.
We need to keep the pipeline of projects flowing smoothly. We need to give our developers and our construction industry certainty. Major Projects provides no fast-tracks, no shortcuts or easy routes. It provides no guarantee of outcome, only a certainty of process.
The reason there are people against this is that the current planning system, as it stands, serves their purpose perfectly. It puts in place vague time frames or extended time frames. It means that developers are not encouraged to have ideas for Tasmania and to present them.
Developers do not want certainty of outcome; they want certainty of process. They want certainty of time frame so they know when they put their money on the table or put their money behind an idea, it is going to be given a fair and rigorous process to go through. That is what we are providing.
The Minister for Planning and his department have put a lot of work in developing and refining the Major Projects process over three years and three rounds of extensive consultation. I congratulate the minister and his department for the amount of work that has gone into this.
They have not made it up, but have followed best practice and drawn from existing assessment processes to develop an independent, rigorous and comprehensive process for the purposes of assessing projects that are significant in terms of their impacts and contributions, their strategic importance and their scale and complexity.
Mr TUCKER (Lyons) - Madam Speaker, I am very pleased to support the bill. As the Minister for Planning has already stated, the Major Projects assessment process improves and expands upon the current Projects of Regional Significance process to provide additional value, certainty and transparency to developers in the community.
At over 200 pages, the bill is complex. I can understand how those of us in this House, who are unfamiliar with the various processes of Tasmania's land use planning system, may find it difficult to follow.
In making my contribution, I will provide the House with a brief run through of the Major Projects assessment process. The Major Projects assessment process has three distinct stages: eligibility, preliminary assessment and assessment.
The eligibility stage is a basic test of whether a proposal is considered eligible to enter the process. A project proposal may be referred for consideration by the proponent, the relevant council or the Minister for Planning. No matter who refers a proposal, its eligibility to be declared a major project is assessed through the same consultative process and against the same criteria.
A project proposal is eligible to be declared a major project if, in the view of the Minister for Planning, it satisfies at least two of the following: it will make a significant impact on, or a significant contribution to, a region; it is of strategic importance to a region and it is of significant scale or complexity. In making a determination in regard to eligibility, the minister is required to seek and have regard to advice from the Tasmanian Planning Commission, state agencies, relevant councils and relevant landowners or occupiers.
The minister is also required to have regard to determination guidelines produced by the independent Tasmanian Planning Commission which will qualify the eligibility criteria. I should note that the minister has no ability whatsoever to influence the commission in their preparation of the guidelines. A proponent is also required to demonstrate that they have landowner consent from any Crown or council landowners or, if relevant, the Wellington Park Management Trust and to have notified any relevant private landowners if the proponent is not the landowner, before a proposal can be declared.
These are the same consent and notification requirements as for other assessment processes under the Land Use Planning and Approvals Act 1993. In addition, while a project proposal may be considered eligible, if it is inconsistent with the relevant planning scheme it cannot be inconsistent with the relevant regional land use strategy, any state policy or any Tasmanian planning policy once these are made.
Finally, if the minister intends to declare a proposal to be a major project, the minister must publish a statement of reasons outlining how the proposal satisfies the eligibility criteria. Once a proposal has been declared to be a major project the preliminary assessment stage commences and the Tasmanian Planning Commission appoints an independent panel of experts.
The panel is required to include a member of the commission or another person nominated by the commission who is to be the chairperson of the panel, along with two other persons who the commission considers to have qualifications and experience relevant to the assessment of the specific major project.
The process of appointing panel members is consistent to how the commission appoints panels for the assessment of proposed planning scheme amendments or a combined development application and planning scheme amendment under section 43 of the Land Use Planning and Approvals Act 1993. The commission may also appoint up to two additional people to the panel should the commission consider it necessary for the assessment of the major project. It is important to note that while the minister may specify in the declaration the qualifications and experience of one of these additional people, the minister has absolutely no role in the appointment of the panel.
In conjunction with the panel being established, the commission provides the proponents project proposal to various relevant regulators for consideration. The regulator then provides advice to the panel. This advice can either inform the panel that the regulator has no matters to assess, that there is a list of matters that will require the proponent to address in order to formally address the proposal and that there is no reasonable prospect of them approving the proposal under their legislation.
Should a regulator provide the panel with advice that there is no reasonable prospect that they can approve the project then it effectively means back to the drawing board for the proponent. The proponent is given an opportunity to submit a revised project proposal or the minister may revoke its major project status. This early advice potentially will save the proponent significant time and money and avoid them having to proceed to a long assessment process without there being a reasonable prospect of approval. The advice from the regulators is compiled by the panel and consolidated draft assessment criteria are produced and then publicly exhibited for 14 days.
Once the public exhibition period has concluded, the panel and the regulator will consider any submissions and then finalise and publish the assessment criteria. The assessment criteria will contain all the matters the proponent will be required to address and which their proposal will be assessed against.
The assessment stage commences when the proponent provides a panel and the regulator with a comprehensive project impact statement addressing all the matters identified in the assessment criteria. The regulator and the panel then undertake an initial assessment of the proponents' project impact statement.
It is important to note that each regulator undertakes the assessment in accordance with the requirements of its own legislation, just as if the major project was any other application.
An initial assessment report is prepared which will consolidate the advice from the regulators, including whether the proposal should be approved or not and an early consideration of the conditions that may apply to a permit. The initial assessment report assessment criteria in the project impact statement are then publicly exhibited for not less than 28 days and submissions are invited from the community. The reason that the exhibition includes the initial assessment report is to provide for additional transparency and scrutiny.
The public will not only be able to review and comment on the proponent's response to the assessment criteria, but also the panel and the regulator's initial consideration of that response. Following the conclusion of the exhibition period, the panel will hold public hearings, and anyone who has made a submission will have a further opportunity to have their opinion heard and considered.
Following the hearings, the panel and the regulator are required to review their advice in the context of the submissions and issues raised at the hearings. The panel will then determine whether to issue the proponent with a major project permit with conditions or refuse the proposal.
As you can see, the major project bill may be complex but the assessment process itself is relatively straightforward.
With all due respect, Mr Deputy Speaker, I am completely mystified how anyone with a modicum of intelligence can, with a straight face, describe it as fast-tracked. It is a rigorous, comprehensive process led by an independent panel of experts, and supported by statutory regulators undertaking their assessments in accordance with their own establishing legislation, just as if it was any other project.
The major projects bill amends section 60 of the Land Use Planning and Approvals Act 1993:
To improve and expand upon the current projects of regional significant assessment process.
It draws upon other current statutory land use planning assessment processes to provide a coordinated approach to assessment that not only provides certainty of process for proponents but additional opportunities for public input and engagement.
Yes, we are fully aware of the highly organised and noisy opposition to the major projects bill from the illegitimate glow-worm brigade.
Ms O'CONNOR - Point of order, Mr Deputy Speaker. I urge Mr Tucker not to be so disrespectful to everyday members of the community including community groups that have come from all walks of life.
Mr DEPUTY SPEAKER - Ms O'Connor, you will have an opportunity to make your contribution.
Mr TUCKER - Members of both Houses have been subjected to a lot of pressure and relentless lobbying from the anti-brigade. I wish that some of these people had put the same effort into trying to understand the major projects assessment.
Ms Standen - Would you like to repeat that?
Ms O'Connor - Yes, I will repeat it, thank you. Now that Ms Standen has taken a point of order because I called her a fraud for her contribution after my adjournment speech the other night in which she said she was quavering and had a tremor in her voice, she sought to nark on me, even though it was not part of the proceedings or the debate. I urge you to ignore her.
Mr DEPUTY SPEAKER - Ms O'Connor, I am not sure that it is a point of order on the debate we are having. It is more a conversation between the two of you off to the side.
Ms O'Connor - That's right.
Ms STANDEN - Mr Deputy Speaker, I ask that the Leader of the Greens withdraw the comment.
Ms O'Connor - It was not on the record.
Ms STANDEN - You just put it on the record.
Ms O'Connor - That is right, because it is true.
Ms STANDEN - I ask you to ask the Leader of the Greens to withdraw.
Mr DEPUTY SPEAKER - If the member has been offended I ask Ms O'Connor to withdraw the comment.
Ms O'Connor - So it's okay for me to be called a racist by a member - that's fine. I withdraw the statement that Ms Standen is a fraud.
Mr DEPUTY SPEAKER - Thank you, Ms O'Connor. I ask everybody to try to keep the debate respectful, listen to the member on their feet, and wait your turn to make a contribution.
Mr TUCKER - Thank you, Mr Deputy Speaker.
Dr Woodruff - We follow the Standing Orders in this place.
Mr DEPUTY SPEAKER - Perhaps you could continue to do so by not interjecting, Dr Woodruff.
Mr TUCKER - We are fully aware of the highly organised and noisy opposition to the major projects bill from the illegitimate glow-worm brigade. The members of both Houses have been subject to a lot of pressure from the relentless lobbying from the anti-everything brigade. I wish that some of these people had put the same effort into trying to understand the major projects assessment process and a simple update and improvement on the current projects of regional significance process as they have done campaigning against it. An ill-informed opinion remains an ill-informed opinion, no matter how often or loudly it is repeated.
This Government does not respond to bullying and this Government will not be side-tracked by the erroneous and irrelevant when it works hard for the benefit of all Tasmanians.
Ms O'CONNOR (Clark - Leader of the Greens) - Mr Deputy Speaker, on behalf of the part of the parliament that I and Dr Woodruff represent, I apologise to the people of Westbury who have been working so hard not to have a prison on their doorstep. I apologise to the people of Dolphin Sands on the east coast who have worked so hard to stop that mega-development, Cambria Green, go in. I apologise to the Planning Matters Alliance and the East Coast Alliance, all of whom have just been slurred by the member for Lyons who is responsible for arguably the electorate that will have some of the biggest impacts should the major projects legislation go through. Mr Tucker, you should reflect on the fact that you represent all your community, not just those you choose to hear.
Dr Woodruff said most of what needs to be said about this appalling legislation. I want to make some specific comments about it, particularly reflecting on my experience before I was elected to parliament when the Walker Corporation was trying to put a 500 home canal estate inside the Ralphs Bay Conservation Area. That was done under the State Policies and Projects Act 1993. Within that legislation it is within the minister of the day's power to declare a project of state significance. The minister is to set out criteria which are to be gazetted in the House but also laid on the table of the House. If a project is declared a project of state significance, it is also to be gazetted and within 10 days it has to be laid on the table of both Houses of the Tasmanian Parliament.
Perhaps Mr Tucker also would have derided the parents, the everyday people, the teachers, the plumbers, but that is how we had an opportunity as a community to have parliament debate the merits or not of Walker Corporation's destructive canal estate inside the Ralphs Bay Conservation Area on the mudflats that are home to myriad migratory bird species, including the pied oyster-catcher, and spotted handfish.
It was that parliamentary oversight that is embedded in the State Policies and Projects Act 1993 that made a real difference to our community, but also to transparency about the process to that point. There are many provisions within major projects legislation that reflect the projects of state significance provisions in the State Policies and Projects Act but this legislation is an absolute dog's breakfast. It is not only offensive to people and place, it is offensive to good law-making.
What we are concerned about, apart from the impact of this legislation on our beautiful island, is that there is a confluence of events that is happening here. We have a government that is reviewing the independent planning system, that is also talking to the Commonwealth about signing a bilateral approval process, not an assessment process, under the Environment Protection and Biodiversity Conservation Act.
We have now the major projects legislation which we are debating here today, and then we have over here the odious and secretive expressions of interest process for development inside the Tasmanian Wilderness World Heritage Area, national parks and other reserved lands. That EOI process is well in train and the stich-up for that started with the rewrite of the Tasmanian Wilderness World Heritage Area Management Plan, which began shortly after the Liberal Government came to office where, embedded within this plan, are all the fixes that are needed to enable private development, commercial development, hard structures, inside the Tasmanian Wilderness World Heritage Area to the point that it is anything goes in the TWWHA, other than if something is declared a wilderness zone.
Then what do you get? You get the Parks and Wildlife Service rewriting the map of what is wilderness in order to enable a development like the proposed development at Halls Island in Lake Malbena, and because we finally got some lease and licence documents back, where the Ombudsman made it clear that the government hiding behind commercial-in-confidence was not good enough, currently Mr Daniel Hackett pays $20 per week to rent out the entire Halls Island at Lake Malbena in the Walls of Jerusalem National Park.
We have these Lego pieces that have been slowly but surely locked into place by a government that is beholden to rent-seekers. This legislation is the rent-seeker revival act of 2020. It makes it clear that if you are a developer who spots a piece of public land or Crown land and have an idea of how to make money out of that land for your own commercial private purposes, this legislation provides the pathway to you. It is rent-seeker legislation.
It is not about enabling more, good private investment on private land. It is allowing developers onto public and Crown lands, and there is a special provision in the major projects legislation for the Wellington Park.
My first question to the minister, if he is listening, is, can he confirm that the major projects legislation covers all reserved lands in Tasmania, whether they be the Tasmanian Wilderness World Heritage area, or our national parks, or our regional reserves, or conservation area, which I believe are all captured under the provision that requires the developer to seek the consent for an application that would sit on crown land.
On top of this is a non-statutory process which is a fix for developers and a reserve activity assessment process which is almost entirely internal to Parks. There must be people who are so distressed in that agency. When someone in Parks leaked to the Greens a copy of the reserve activity assessment for the Lake Malbina Project we saw Parks had very helpfully suggested to the developer that it would go in at level 3 under the Environment Protection and Biodiversity Conservation Act, which means there was no requirement for a proper assessment or for public consultation. So at every step of the way the fix is in for private developers over people and place.
I would like to ask the minister why no consideration was apparently given to making a declaration of a major project a disallowable instrument so at least parliament would have some oversight over the decisions that you would make as minister to declare a project a major project before it goes into the assessment process. That is good process, giving parliament and elected representatives who represent our communities, that rabble that Mr Tucker was talking about before, an opportunity to examine decisions that are made around Major Project declarations and to have debates in the public interest on the merits of those projects. We are talking about some absolute shockers that could come forward.
One of the most confronting aspects of this Government's tenure over the past six years has been this sense of entitlement to public lands. This sense that public assets, while they are in government, are theirs to play with, to divvy up. There is no better example of that than the expressions of interests process for development inside protected areas.
What did we see at the T21 Visitor Economy Strategy launch the other day, which I am unshocked to say I did not get an invitation to from Mr Luke Martin? Featuring in the action plan are the words, 'Maintain focus on tourism as a priority area for attracting investment and working with proponents to support new projects and address barriers?'
I have to ask, what possible barrier - real, legislative, statutory or process barrier - is there in place now? The only thing that stands between the Tourism Industry Council at its extreme, the leadership of the Tourism Industry Council, rent seekers like the Tasmanian Walking Company, the proponents of Cambria Green, Walker Corporation, Gunns Pty Ltd, the only thing that really stands between those developments and them becoming a reality is civil society in Tasmania.
For decades now Tasmanians have stood up to protect their place. While this legislation will make it harder to do so it is not going to mitigate conflict over land use planning. Surely the Government would want to de-escalate to the greatest extent possible conflict over land use planning. This is a recipe for more conflict as private developers come forward with skyscrapers for the city of Hobart or Launceston, or a mega development on the east coast, or a cable car up kunanyi, you will see again thousands and thousands of Tasmanians who just love this place do what we have always done and stand up to defend it.
Given the dunderheadedness of successive of majority governments in this state it is a wonder that we do not look like an industrial zone. We have had governments here - the Bacon-Lennon government, the Gutwein Government - that see our natural resources as something only to be exploited, who are very cozy with private interests. Yet somehow, we have managed to protect the best of this island.
The assault on this place never stops. The rent seekers, the people looking for the last free real estate, the loggers, the miners, the smashers and burners. Therefore Tasmanians will always be vigilant. After Dr Woodruff and I are well in our cups, our children and their friends and that generation and the generation that comes after them will stand up and defend this place. People all over this island are prepared to do that like, the 10 000 people who marched through the Styx 16 to 17 years ago; and the 10 000 people who have marched through the streets of Hobart and Launceston to stop a pulp mill. The thousands and thousands of people we drew into City Hall to save Ralphs Bay. That community, that love is there to be tapped.
People will stand up and defend their place no matter what dunderheaded government is in power and working with private interests, not for public benefit but for commercial gain. These are the same private interests that government tries to protect from Right to Information applications by saying all their dealings with them are commercial-in-confidence. The Ombudsman put paid to that.
Briefly back to the T21 Visitor Economy action plan. No-one should be surprised that the lead agency for that is the very Office of the Coordinator-General; Mr John Perry who, as a public bureaucrat, thought it was appropriate to try to influence Hobart City councillors in the decision they make over the proposed new private hospital in New Town.
I am not going to apologies for our cynicism about the way this Government looks at planning and land use management. It is all there. The history is there. In terms of Tasmania's protected areas, it began very soon after this Government came to office. The fix is in with this legislation. Now we have the planning commission review, which is happening simultaneously. I would like the minister to tell the house whether or not the bilateral EPBC approval agreement has been signed. Are you listening, minister?
Mr Jaensch - Intently, it is fascinating.
Ms O'CONNOR - I do not think you are. You do not have to be facetious to me. It would be nice if you could give me a straight answer. Has the bilateral agreement been signed? The Major Projects legislation makes specific reference to a bilateral agreement. Is the legislation talking about the bilateral agreement that is on the cusp of being signed?
Mr Jaensch - The one that exists.
Ms O'CONNOR - So that is the assessment agreement that cover wilderness? Is that right?
Mr Jaensch - Bilateral assessment.
Ms O'CONNOR - Yes, I think it is quite narrow in its application though? Are you aware of the details of that?
Mr Jaensch - I am not.
Ms O'CONNOR - We might come back to you on that. Can the minister give the House an update on the bilateral approval agreement that is being flagged as a one-stop shop by this Government and by the Morrison government? Perversely, about two weeks after the Samuels review, the Australian Audit Office came down and said the administration of the EPBC act has failed to protect Australia's environment and our threatened species and somewhere between 70 per cent to 80 per cent of approvals that were made under the EPBC act were non-compliant.
Instead of lobbying Canberra to have strong national environment laws, the Tasmanian Government is saying, 'Sign us up, let us do the approvals and leave those laws the way you are, because we have other fixes here in Tasmania'.
I am firing a shot across the minister and the Government's bow that if you think the Land Use Planning and Approvals Amendment (Major Projects) Bill 2020 is going to bring you any love in the community, you are mistaken. It is very cynical to try to use people's straitened social and economic circumstances as a result of a pandemic as cover to say this legislation is necessary. It is not necessary to trash this place in order for us to have a healthy recovery, Mr Jaensch. It is really cynical the way suddenly major projects became apparently essential legislation because of COVID-19. That is being dishonest with the Tasmanian people.
We will not be supporting this legislation. We do not believe it has strong community support and we stand with those communities who love their place, want to defend it and want to know that there is an independent planning system in place that cannot be influenced by private developers having nice chats with the minister that will put people and place first and make sure that communities have a real voice in the planning process. I condemn the bill to the House.
Mr FERGUSON (Bass - Minister for State Growth) - Mr Deputy Speaker, I will be brief in my comments. I do not want to draw out the debate. It is vitally important that the bill be supported by the House. I commend the Minister for Planning, my colleague, Mr Jaensch, for the work he has done. I also commend the previous minister, who is today the Premier, because when Mr Gutwein was the Minister for Planning he put in place some of the early steps on this as well. There is a lot to love about this legislation and I support it. This side of the House supports it. The Opposition supports it and that is terrific.
This Government is getting on with our task of delivering job-creating infrastructure as part of our $1.8 billion program over the next two years and we estimate this will deliver around $3.1 billion in construction activity right around the state, coming at a time when we need it most. Unfortunately, as we look back to last year's budget delivered in May 2019, we were facing some economic headwinds as a nation and this Government decided that rather than taking Tasmania back a gear, we needed to put our infrastructure up a gear to employ people and to underpin the employment of around 10 000 Tasmanians as part of delivering on the then $3.6 billion and now $3.7 billion program over four years.
It is just as well we did because of all the planning work and preparations. Day after day my colleague and friend, Mr Barnett, comes in here tabling more acquisition notes and every time he does that I am reminded of how much activity is occurring in this state, not because of decisions that were made reactively during COVID-19, but the ones that were proactively made last year which have placed Tasmania in a remarkably strong position to be able to spring back as quickly as possible.
The front page of The Australian, to the mockers on the other side, is again a helpful insight into what goes on in the mind of a relentlessly negative opposition -
Ms Butler - Relentlessly negative?
Mr DEPUTY SPEAKER - Order, Ms Butler.
Mr FERGUSON - Yes, from the member who claims the buildings are literally wrapped in petrol, but I digress.
The front page of the Weekend Australian two weeks ago highlighted that Tasmania has the highest level of support for our economy recovering of any state or territory, including by a factor of two as a portion of our gross state product. We are the highest in the country. You should love that. You oppose a northern prison. It is not just about infrastructure, it is about helping people -
Ms Butler - No, we didn't oppose a northern prison. We opposed you not consulting properly with the community.
Mr DEPUTY SPEAKER - Order, Ms Butler.
Mr FERGUSON - I am happy for you to pop that on the record, because every time you pop something on the record we have a new cataclysm of conflicting ideas, but I digress again.
The simple fact is that infrastructure is not just about more concrete, asphalt or steel. It is about employing women and men in these civil construction firms during the construction phase and creating opportunities for our businesses to be more productive, to sign that next lease, to get that next contract, to employ more Tasmanians.
This legislation is a vital part of our recovery. It may not be urgent legislation in the sense that we have had to move very nimbly through various COVID-19 emergency bills, but it is very necessary at this point in time. The minister has extended the consultation. He has gone out of his way, to his great credit, and has been very patient with people. He has gone out of his way to consult again and again. He has published draft versions of the bill. He has consulted me, other agencies and ministers. He has looked for common ground where it can be obtained and he has had to suffer false claims about this legislation by people who want to use language like fast-track, cut corners or whatever else they have been saying. Those things have been unhelpful and untrue.
We are modernising the existing legislation which is not fit for purpose. We already have kind of an early evolution of today's bill already in law, already passed through this House many years ago, but the problem with that existing legislation is that it is not fit for purpose. It is called PORS, the projects of regional significance legislation. That has been in place for 11 years now but since it was introduced it has not been used even once. Feedback to me from my department and from stakeholders is that it does not work.
When you look at it and examine it, you wonder if this is going to be fit for purpose for our project, and the answer is unanimously no. It has never been used even once. There is a reason for this. Despite the best intentions of whichever minister brought that in 11 years ago - who was that?
Ms Dow - David Llewellyn.
Mr FERGUSON - My friend, David Llewellyn. He is a good man, and any member of this House who might follow in his footsteps ethically is doing very well. He is a good man and I enjoyed working with him when he was the manager of opposition business.
If he brought it in, it would have been well intentioned, but it has not worked, and the stakeholders tell us it is too unwieldly, so proponents choose to use the standard approvals process which is multi-faceted, multi-pathway and leads to an uncertain future. It is not set up to deal with larger projects. It is intended to, but it does not deliver. It is not set up to deal with larger projects which have impacts outside of a single municipal area.
According to the Tasmanian Planning Commission website, major development proposals that have effects that extend beyond a single council area but are confined to a regional area can be assessed as projects of regional significance under the Land Use Planning Approvals Act 1993, or LUPAA.
The major projects legislation we are debating today will effectively replace this rather redundant and absolutely underutilised legislation and replace it with a contemporary framework that is fit for purpose. Importantly, and I say this very strategically and deliberately to do some myth-busting, this legislation does not bypass any existing checks or balances. This is a vital point. If it did re-engineer some of those checks and balances, that would have been a legitimate debate. That would have been fair enough to discuss it, maybe, and there might have been an area which needed to be reviewed.
That is not what is happening today, despite those who are trying to shoot down the legislation for whatever reason. It is about retaining those processes but bringing them into a streamlined process, so it might be said, same rules, better process. That is something that has unfortunately been lost in what passes for political debate in this state and what is able to get on the 6 o'clock news of a night.
The Government is already undertaking a regulatory reform process. I am leading that with the Office of the Coordinator-General and the Red Tape Reduction Coordinator, Mr Clues. I was very appreciative of the support we had in this House from the Labor Party and the Greens and Ms Ogilvie. I believe it was unanimous support with a couple of minor differences perhaps. During those debates which had a lot to do with the Land Use Planning and Approvals Act 1993 and local government, members who are in the Chamber right now said to me, 'Well, I hope you are going to take your own medicine?' and that is exactly what I said we would be doing, are doing.
Ms Dow -Yes I did.
Mr FERGUSON - Yes, and I look forward to bringing you some more legislation which will see the same sorts of discipline brought into more and more government agencies so that we can help the construction industry get its projects out of the ground.
I took that challenge. I was already doing it but I was very grateful for the simple fact that it is not just about saying, 'local government, we want you to have some uncomfortable moments', it is important that we all go through some red tape reduction. Frankly, to be honest, it is uncomfortable for a number of individuals. But if it is not uncomfortable then it would have been done years ago. So if you want to deal with these issues, now is the time to be doing it. I appreciate that support and it will be returned.
The whole idea of this reform project is to provide consistency and certainty for the development sector without compromising any of these existing safeguards. In many ways, the major projects legislation will be the same. It will update what we currently have. It will make it more relevant without compromising on the integrity of the approvals process. I offer this point, that is important to everybody and that is not to be compromised and it will not be.
Industry certainly welcomes this critical legislation. I was grateful for the recent announcement from Matthew Pollock from the Tasmanian branch of the Master Builders Association saying:
The introduction of the major projects legislation will give a signal to private developers that Tasmania is open for business and will put our state in a more competitive position to compete for a shrinking pool of private capital across the country. Every other jurisdiction in Australia has functioning legislation which supports the permit and approval processes for major projects. The fact that we do not have a functioning process to support local major projects puts us at a significant disadvantage.
The importance of a bill like this cannot be underestimated. We need to be doing this in order to support legitimate good developments to be assessed and, ultimately, to be approved or not approved as the merits of the case may be. Having legislation like this could also be the difference between being able to attract a major investment, such as a hydrogen plant for the state, or not. Remember, that if proponents see a cumbersome, uncertain process ahead they are as likely as not to look at competing jurisdictions for their investment and we need to be pro-Tasmania. We need to be pro-Tasmanian jobs.
Of course, after the worldwide devastating effects of the pandemic, we need to rebuild the economy again. We are, and the economy is rebounding. We are seeing some marvellous encouragement from the national surveys including the Census Business Confidence Index - a fantastic result there, Tasmania leading in confidence amongst the states. The NAB Business Survey, the CommSec Report, the State of the State Report, despite the fact that the whole country has taken a hit, Tasmania is showing signs of doing the best of the states as we all jointly recover. This legislation provides us with a mechanism for that recovery - just another tool in the tool kit, not the only solution, not the silver bullet but part of our arsenal.
We have had the most confident businesses in the nation and the most engaged community and the strongest growth and we will do it again. We know that appropriate regulations are required to protect our community but the impact of outdated legislation is a major concern for businesses.
By improving the approvals framework, piece by piece, we can maintain the fair checks and balances that are needed but also improve on the overall efficiency, usability and timeliness of our system in a structured and targeted way. This must be the aim of the Government and indeed this parliament at this time during our recovery from the pandemic, which continues.
As minister responsible for State Growth, and Infrastructure and Transport, I am working closely with my department to deliver on a record level of infrastructure investment, one of the central pieces being the Bridgewater bridge, the Derwent River crossing. This is a vital project, not only for transport integrity and productivity but also as an employer. That project is alive again and people have speculated over many years about the trajectory of that project. It was originally funded in 1998. Some members here might wonder where they were in 1998. Many of us were young back then and many years have gone by.
That project is alive. We now have a project director and an executive steering committee. We are on the National Infrastructure Australia radar and we have federal funding locked in. It is a commitment under the Hobart City Deal, with an implementation plan.
We have consultancies and that is good too. Those consultancies are further proof of life, not only through the process of the early contractor involvement which will be advertised this month, but also estimators, people who can make sure that the project stays on its budget and that we carefully weigh up the competing bids that will come forward through the ECI in a very new way for our state.
We are going to commence building in 2022, vehicles driving on it in 2024 and a heck of a lot of work to be done between now and then, but there are great people working on this project. I am delighted to commend the project itself to the House. This legislation will also assist us in delivering that project.
We want some certainty. Members of this House, from any party, if you support the Bridgewater bridge, you are supporting it getting a proper assessment in a streamlined and contemporary way, cutting no corners but making sure that there is some certainty around the process and trying to do individual steps in parallel rather than one at a time in series. Helping that project to become a reality is a joint responsibility, not just of the minister, the Premier or one side of the House, but all of us. If you believe in these projects, your cheering it on will help and it will help take the community with us also.
In conclusion, I say thank you for the Minister for Planning, Mr Jaensch. You are doing a fine job and you have my complete support for what you are doing here. I thank him for his particular efforts in bringing it before us today. I support the bill.
Mr JAENSCH (Braddon) - Mr Deputy Speaker, I acknowledge and thank the members who have made contributions on this bill today. I understand there has been a foreshadowing of a will to go to Committee to consider matters in further detail.
There is nothing new in this bill. Everything in this bill, from a planning machinery sense exists in the Tasmanian planning system already. Every element of it and each approach taken and principle used has been through this place, and has been debated and agreed in the past.
We are not proposing a radical new approach. We are filling a gap in our legislation and providing a mechanism that makes the existing parts of our planning system work together more efficiently for everyone's sake: government, councils, planning consultants, developers and communities, when it comes to the task of assessing complex projects that touch on many parts of our planning system.
I commend the planners, the legal people, the parliamentary drafts people and the practitioners who have contributed to the creation of this legislation over many years. Much work has gone into this from people who intimately understand our planning system and the legalities and practicalities of its implementation and its use. I am ashamed that the debate on this bill tonight has not talked about the planning machinery of Tasmania at all.
Ms Dow raised a couple of points that have a clause number against them in the bill to talk about and I am going to talk about them and look forward to there being more when we get into Committee.
Everyone else talked about the hyperbole, the drama and the incredible paranoid theatre of the Tasmanian planning development environment and the stupid political debate that surrounds it all too often. This bill, for anyone who reads it and who knows and works with our planning system, will see that this has been built with an absolutely straight bat. It is workmanlike legislation that brings together a range of disparate elements of our planning system to make them work better. I thank everyone who has put their work into this whose work has not been appreciated in the debate so far tonight.
I make no apologies for this being a long and complex bill. That is okay; it is a complex issue. We are here to deal with these sorts of issues to make laws that work well for Tasmanians. Its complexity reflects the process it has been through - three drafts over five years and 20 weeks of consultation, not just the 10 weeks that we have just had which was five but was extended because of extenuating circumstances. It reflects the detail, clarity and certainty that a whole range of different stakeholders have asked us for and demanded for their own reasons. They want to know how this is going to work and they want the legislation to be explicit about it.
Dr Woodruff - How do you respond to the TPC's comments I just read out verbatim from their submission?
Madam DEPUTY SPEAKER - Dr Woodruff, this is not a time for debate. The minister is speaking. You will have the opportunity for questions when we go into Committee. The minister is summing up at the moment.
Mr JAENSCH - In her contribution Dr Woodruff raised some comments by the TPC that the drafting style is somewhat dense and hard to follow clearly in the reading of the legislation. My understanding is that there is a range of processes that the TPC uses and applies that would have been more simply just referred to. The TPC will do this in the usual way but instead of doing that, for the sake of clarity and certainty for people who are reading this, many of those processes have been reiterated in this bill and specifically described so there could be no doubt as to how they were intended to work.
The average punter, in using this bill and benefitting from it, is not going to have to sit down and read through that. That is our job as legislators. We are here to get this right and to be clear and precise about what we are describing.
I make no apology for this being 206 pages and for it going through pedantically many of those details and those connections. All of the consequential amendments that need to happen in a range of other bills where you turn a process off here because you have duplicated it this is all built into this and no-one has talked about that tonight but it is part of the work that has gone into building this bill and making it work.
I do not accept that we have members here who could not be bothered or find time or find it possible to read and understand this so they have got up tonight and talked about completely different things that they are far more comfortable having a rant about. It is an insult to the people who have put good work into making this a good bill and bringing it to us today, not to mention all the people over the last several years who have contributed their advice and experience into getting it right.
I hope that in some of the comments I have been able to make, and hopefully some of the discussion we are going to have in Committee, they will see that people in this Chamber have taken it seriously, because all the people we are talking about will depend on this legislation being good, and too few people who have been on their feet tonight have actually talked about the bill, just about what they would like people to believe it is and which they do not know about, because it would appear that some of them have not even read it, even if they have been offered briefings.
With that out of the way, I will go to some of the matters that have been raised by some members in their contributions.
Ms Dow took us to a couple of proposed sections specifically of the bill, including 60K(5), which I believe is the section which refers to the need for the minister to have reference to unique local planning rules that overlay the planning scheme in the process of declaring a project, or determining if a project can be declared a major project. Those will also be reflected in the eligibility and termination guidelines that are provided by the Planning Commission. The aim of that is to ensure that when a council in a local community, and the Tasmanian Planning Commission, have at some point, particularly if it has been recent, seen fit to propose, examine, prosecute, test and approve a particular unique set of planning rules for a locality to overlay on the planning scheme, that work is taken into account because there a reason for it to be important.
That matter matters more than the generic provisions of the planning scheme for that area and has to be taken into account in the decision-making process. The live case example that has resulted in it being inserted in this bill at this time in particular is in relation to the Hobart City Council working with the state Government to develop a precinct plan for the Hobart CBD which will set out to determine some local planning rules for the shape, skyline and envelope within which the city grows, dealing with, amongst those other things, the heights of buildings within it. That is work that will ultimately be tested and approved by the same Planning Commission which is going to put together a development assessment panel to assess any major project.
What we are doing is linking back to that existing work that that same Planning Commission has done, and the same principles on which it has been done, to ensure that that work is honoured in the assessment of any new project coming through the major projects system. That is entirely appropriate, but that is the unpacking of that issue, Ms Dow. In that context also, we note that the Wellington Park Management Plan is one of those specific area plans as well and therefore its provisions need to be considered if it was to be in the footprint of a project that was being considered through the major projects process.
The other thing that is relevant to mention here is that not only does the minister have to consider those matters when assessing the eligibility of a project to be considered as a major project, but if it is declared, those matters also need to be considered by the development assessment panel when it is conducting its assessments of the same project as the Land Use Planning Assessor in the process.
There is a safeguard there. The minister needs to assess that as part of declaring the project to be a major project. It is also caught up at two other stages in the process. One at the no reasonable prospects early tests stage, before the assessment criteria has been developed and later when the assessment criteria are applied. That safeguard follows right through the document. That is one of the reasons why the document is long and complex, because there is a page that describes that, that occurs in several parts of the legislation.
Ms Dow raised the issue in clause 60ZZM(4), the use of 'in contravention to' in relation to a state policy. LGAT asked if that is the correct wording? I understand that this is a drafting style or convention of the Office of Parliamentary Counsel, which drafted this legislation. In state policies, they use that term, rather than talking about 'consistent with'. It is 'in contravention to' as a policy but is equivalent to being 'consistent with'.
The other matter raised included the exhibition of documents, which is laid out in clause 60ZZB. The documents would be exhibited electronically on the TPC website with hard copies also available at a place specified. That is something that is left open because it needs to take into account the location of the project, the affected communities and so could quite logically include local council officers. In my notes I have considered that there is some parallel between this and the exhibition of LPSs. There is the ability for there to be a physical copy at a place. It would also have recourse to some of the mechanisms that were developed to deal with COVID 19 and to ensure that people were able to have access to documents, even if those sorts of business premises were not accessible to them at the time.
There were various other advertisements for the Labor Party manifesto and policy platform on COVID-19 which we are grateful for, but outside the scope of the commentary on the clauses.
Ms Dow - On indulgence, there was one other point on clause 60P(2)(b) in relation to consent from a general manager around a project. Could you elaborate on that please, for the benefit of the House?
Mr JAENSCH - Clause 60P(2)(b), you are quite correct. My understanding is this reflects, as with a normal development application under LUPAA, that the local council, as a land owner, needs to provide consent before a project can be made a major project and be eligible. Same with any public land. That is another example of where this is normal, like a DA.
I do not quite know where to start with Dr Woodruff's contribution. There was a fair discussion about the complexity and the difficulty of reading. We offered and provided a briefing. The material has been around for quite some time. You have not only had a week with this. You made comments publicly that there are very few changes from the last version, so you have been able to read it enough to pick that up and acknowledge that you have had the previous draft for quite some time.
Dr Woodruff - I hope you are not implying that I have not read the bill cover to cover, minister, because that is not correct. We have all read it multiple times. I was referring to the TPC's comments and its informed view.
Mr JAENSCH - I understand where you are coming from, but there was a range of other comments and accusations made around corruption and the Government's motivations. I will just step over them because I cannot fix that in you so I am just going to talk about the bill.
There was a considerable discussion about the consultation process, the time available and the accessibility of the process for people to get in. Again, 20 weeks, three drafts over five years. The latest round was extended from five to 10 weeks. There have been 1500 submissions. There have been, as other contributors have mentioned, groups and organisations, interest groups, who have been able to organise themselves and put together a formidable information campaign around this bill. I do not think that people have not had the opportunity to engage with it, or to communicate with each other, or to communicate with me or the Government or the department or any other interested party in this.
There has been a very active discussion. I note with genuine respect this bill has gone through this consultation and development final phase in parallel with another bill which is very complex and important and which is going to be tabled in our Houses of parliament very soon on voluntary assisted dying. I have not heard an outcry that that bill is deficient because it has been consulted during the period of COVID-19 with limited ability for people to consider and discuss and make their contribution. As someone who is personally interested in that bill and has had the opportunity to ask questions and participate, I draw that parallel in terms of the time frame in which an important, complex bill has been developed. I have not heard the Greens or anybody else calling for it to be deferred because it is unsafe to have consulted on it while people have been under other pressures, under COVID-19.
I thank Ms Ogilvie's for her thoughtful contribution and for her legal lens on the process. The matter of consultation is very important. Ms Ogilvie got to the matter of how community members, ordinary people who might be neighbours to or stakeholders with an interest in a development like this are communicated with through the process.
Ms Ogilvie - The tin tack stuff.
Mr JAENSCH - That is right. There are a couple of things there. They do not need to read and understand the bill.
Ms Ogilvie - They do and their lawyers will have to.
Mr JAENSCH - In operation they are not required to be consuming this as an information product of the process. The process that involves them, and there are a number of touch points that we have laid out in the second reading speech and subsequently -
Ms Ogilvie - I saw the flow chart; that was good.
Mr JAENSCH - Yes. Is where the Planning Commission or the minister at various stages engages them directly and provides them with a document, a summary of information. In discussion with my colleagues from the department we take on board your very clear point that when a set of assessment criteria or a project impact statement or a preliminary assessment report is presented to those interested parties
We need to make sure that it is in a format and that there is guidance for those people to be able to navigate it, so that it is fair and meaningful communication. We are sincere about their ability to access information and ask questions.
I do not think that this process involves the 'David and Goliath' of developer and their neighbour. There is a process which manages that relationship and the flow of information, and that is a feature of having this integrated planning approach.
Your contribution is very important, as we set about developing these information products to ensure that they are not just technically correct but that they are intelligible for the ordinary reader, and that we provide a mechanism to ensure that people have the opportunity to ask questions about it so their responses to it can be informed at all times.
Neighbours should not need lawyers in order to be able to participate in the process.
Ms Ogilvie, there was another matter you raised: community engagement. There is that pre-declaration stage. The public exhibition, the assessment criteria, the response to the major project proposal and impact statement and the hearings before the panel which are their entry points. Again, the material they are given must be purpose-built to ensure that they can use it.
Ms O'Connor - I am sorry to traumatise you in that way.
Mr JAENSCH - You do. I take it personally. You understand the implications of having good legislation, good process, good precedent, and again I am disappointed in you, that you did not talk about the bill. You talked about everything else.
Ms O'Connor - I contrasted it to the projects of state significance process.
Mr JAENSCH - You should contrast it to the projects of state significance and process because -
Ms O'Connor - I did.
Mr JAENSCH - Good, because I want to contrast it too, because you are saying that we should have a stage in this which is about this disallowable motion.
Ms O'Connor - No. All I said was, the contrast is that there is no parliamentary process.
Mr JAENSCH - Yes, exactly, and there are reasons for that. I am very happy to spend some time unpacking why we do not need a disallowable motion in this bill for the declaration of a project to be a project of regional significance. It is partly because the projects of state significance suspends everything in the planning system except for state policies.
It starts afresh in assessing from no precedent, no rules, except for the state policies, which is only three of, or something. Therefore, it has an extraordinary scope to make it up as it goes along, whereas the major projects process has to ensure that before a project is admitted to the major projects process that it meets the eligibility criteria that is set out in the bill, using guidelines that are provided by the independent Tasmanian Planning Commission to determine that.
Ms O'Connor - Independent for now until you review the guts out of it.
Mr JAENSCH - There you go again. Come back and talk to me about this bill. It is a bloody good bill, and you know it, and you are afraid of it. So, you want to talk about everything else while you have a chance.
Madam DEPUTY SPEAKER - Order.
Mr JAENSCH - That is the problem, because Cassy actually knows this is good, Madam Deputy Speaker.
The minister also has to take advice from the Planning Commission, the council involved, other councils in the region, state agencies, neighbouring landowners and tenants before declaring a project to be a major project.
He, or she, also needs to test the project's eligibility under the other parts of the Land Use Planning System that are suspended when you go down the road of a project of state significance including the objectives of LUPAA Schedule 1, Consistency with relevant state policies. That is the only place where it is comparable. Consistency with applicable Tasmanian planning policies and that it is not inconsistent with the regional land use strategy, things that a project of state significance can conveniently ignore. That is why that needs to come through a different process to here. This test is then repeated by the panel before the assessment criteria are developed and at the no reasonable prospect stage and as part of the panel's assessment of the major projects impacts statement later on. The minister must publish his or her reasons for declaring the project to be a major project addressing all of those matters.
Mr JAENSCH (Braddon - Minister for Planning) - Madam Speaker, this is all going to seem rather feeble after that. I take this opportunity to congratulate my colleague and friend, Felix Ellis, member for Braddon, on that extraordinary inaugural speech. Like others who have heard it and will view it in the future, I have seen the first of many significant contributions from this remarkable young Tasmanian. I am looking forward to more of that.
Madam Speaker, when I was interrupted by the end of business yesterday I was in the process of wrapping up my contribution and responding, in particular, to the contribution made by Ms O'Connor in regard to the major projects bill. I was on the topic of her comments regarding the desirability of a disallowable motion inserted in the process, particularly with regard to the declaration of a project to be a major project.
I point out that insertion of a disallowable motion in the process would typically require there to be a prescribed period for that motion to lay on the table of both Houses of parliament. Depending on the timing of that laying on the table, that period could extend to months, particularly if sittings of parliament were interrupted by things such as the winter recess period unless that motion was brought on for debate in both Houses to resolve the matter.
Either way, having a disallowance process could undo two vitally important objectives and principles that have been built into the major projects process, the saving of time and process for the assessment of a project so it can save money and get underway, but also the principle that we have built in of reducing wherever we can political decision-making and uncertainty.
This does not matter so much in the context of the projects of state significance process which can extend over years, but it can make a huge difference to the shorter time frames of the major projects process which is aimed to conclude its business within one year. Deciding eligibility of a project through a vote in parliament is the opposite of what we have been told we need to try to do, to remove politics and political decision-making from planning assessments and decisions.
The process as described currently in the bill provides strict criteria guidelines to apply them, it requires consultation and a public report on reasons for a declaration and a vote from the parliament requires none of these things and would remove those values from the process.
Ms O'Connor also asked if the major projects process and the provisions we have in the bill cover reserved land. The answer to that is that the major projects process is a process under LUPAA so the major projects process applies can apply on all land where LUPAA applies. Landowner consent is required from DPIPWE for any declaration on a major project and the major projects process importantly does not include any authority under the National Parks and Reserves Management Act, so all normal approvals processes would need to be observed, and the act and regulations do not allow anything to be approved that is not allowed under the relevant management plan for a reserve.
Ms O'Connor also asked about the EPEC bilateral agreement -
Ms O'Connor - It might be getting knocked off in the Senate.
Mr JAENSCH - I think we dealt with that through interjection as she was speaking. She referred also to the Planning Commission review and there has been a fair bit of fearmongering on this issue through -
Ms O'Connor - It's only because the communities that are called 'illegitimate glow-worms' don't trust you.
Madam SPEAKER - Ms O'Connor, please show respect to the speaker.
Mr JAENSCH - There has been a fair bit of assertion during the public discussion on major projects that there is a conspiracy here to somehow nobble the independence of the Planning Commission through this review process in a way that is associated with the major projects bill. The review has been undertaken precisely to ensure that the TPC remains independent and effective in its role in a changing planning system and at the base of any review, which I have not seen a report from yet, is the absolute certainty that any changes to the Tasmanian Planning Commission Act would need to be passed through both Houses of this parliament to take effect, so there is another conspiracy theory that I think we can safely put to rest.
I am aware that Labor has circulated some draft amendments to the bill but has not yet tabled them. I will indicate that we find the amendments problematic but are happy to discuss them and there may be elements we can agree to.
I do not know of other members proposing any amendments. They have not flagged any. There has been a sad lack of detailed scrutiny of the clauses and the mechanisms of this bill. I am disappointed that with the build-up we had only one speaker from Labor. I am concerned that the party that went to the extent of telegraphing their support for the bill for quite some time have now circulated amendments but not tabled them. I believe that some of those amendments in their proposed form undermine very important principles that underpin the bill -
Ms Dow - Madam Speaker, I tabled the amendments yesterday. They have been formally tabled.
Mr JAENSCH - Have they been tabled?
Ms Dow - Yes.
Mr JAENSCH - Okay, thank you. I understand there is an indication to go into Committee and I look forward to further discussion there.
Before I wrap up, I acknowledge that this bill has had a long journey, many drafts. It has had extensive consultation and contributions from many people. I acknowledge some of them in my summing up. My colleague, Elise Archer, as our spokesperson on planning carried this as our policy in 2014. My colleague and now Premier, Peter Gutwein, as minister for Planning bought it in our first term of government. Along the way they have been served by many advisers and public servants working in our system and stakeholders across our community.
In particular, I acknowledge the work of Brian Risby, Lee Stevens (TBC), Andre Norris (TBC) and Brooke Craven (TBC) from the Department of Justice. I acknowledge the Tasmanian Planning Commission for the advice that has been provided over time and the Local Government Association of Tasmania, Dion Lester and Katrena Stephenson, in particular; as well as members from EPA, Aboriginal Heritage Tasmania, the Department of State Growth and DPIPWE who have given excellent service in consultation on the final form of the bill as we have it right now; and Robyn Webb and her team at OPC.
Everyone will agree this is an enormous and complex piece of work and we have benefited greatly from their talents, as we do every day in this place. I give particular thanks to David Palmer (TBC) and Anthony Reid (TBC) from my office who have assisted me through the process of understanding and improving and putting our own stamp on this bill in our turn, to refine it and get it right, and hopefully deliver it with the support of others.
I thank all members, I thank my colleagues, John Tucker and Nic Street, for their contributions and their support and interest in this bill, in this debate.
I commend the bill to the House.
Clause 4 -
Section 3 amended (Interpretation)
Ms DOW - Mr Chairman, I move the following amendment -
Part 1 section 3 of the Principle Act be amended as follows in relation to definitions.
By inserting the following definition after the definition of development:
1. For the purpose of this act, a donation is a gift made to or for the benefit of a political party registered in Tasmania; or
(b) A gift made to or for the benefit of a member of the Tasmanian Parliament; or
(c) A gift made to or for the benefit of a candidate or an intending candidate for an election to the Tasmanian Parliament; or
(d) A gift made to or for the benefit of an entity or other person, not being a party, a member, a candidate or an intending candidate.
The primary purpose of which was used by the entity or person.
(1). To enable the entity or person to make directly or indirectly a donation to a party, member or candidate; or
(2). To reimburse the entity or person for making directly or indirectly a donation to a party, member or candidate.
2. A gift to an individual that was made in a private capacity, the individual for his or her personal use and that the individual has not used and does not intend to use solely or substantially, for a purpose related to an election or to his or her duties, as a member is not a donation.
(b) By inserting the following definition after the definition of Executive Commissioner -
Gift for the purpose of this act. A gift is any disposition of property made by a person to another person, otherwise than by will, being a disposition made without consideration in money, or monies worth or with inadequate consideration and includes the provision of a service other than volunteer labour for no consideration –
Ms HADDAD - Mr Deputy Chair, the reason for moving these two amendments - and I know that on the second reading yesterday it was commented, I think by the independent member for Clark, that these -
Ms Ogilvie - I think they are in the wrong spot.
Ms HADDAD - She is not wrong. They will hopefully one day be incorporated into the Electoral Act as well.
However, the reason for moving these two amendments today is that our subsequent amendments refer to these terms, 'donation' and 'gift'. For that reason, it is necessary for the principal act, LUPAA, to have definitions attached to those terms, in expectation that the following two amendments would become part of the principal act.
Dr WOODRUFF - We will be supporting this amendment. The Greens have always supported political donations reform in Tasmania.
We are in a sad situation where we have to amend individual acts in order to be able to put some restraints on the power of lobbyist-influenced decisions made by ministers within government, and by government policy. This is not a good state for Tasmania to be in. We have languished behind other jurisdictions in Australia, and that has been noted for a long time. We are continuing to see the evidence of undue influence over departmental and ministerial decisions by lobbyists.
The only way Tasmanians get to see that is when right to information requests are made, and that evidence comes to light. It is clearly not made obvious, the role that political donations have over the decisions of government, and indeed over the course of elections. We only have to look at what happened in the 2018 election to understand the role of undue influence by lobby groups and big money that has not only bought decisions, but has in fact bought an election.
The 2018 election was bought by money from Federal Group. It was bought with a purpose of making sure that this state does not bring in the best pokies legislation in the country. We were on the brink of being able to do that. It was clear that the Farrell family knew exactly what they needed to do to secure their investment for the next quarter of a century, and they did just that. They poured a river of money into Tasmania - a sea of blue was across the landscape. The social media spaces, the newspaper spaces, the television spaces - every single bit was bought, and bought to the hilt. What we had was the best evidence you could ever gather for why we need political donations reform in this state.
Since then, despite the Premier, and the past premier Will Hodgman, waving their hands around and pretending to be interested in doing something about this situation, we do not have the bill before us. We do not have anything to debate in this parliament.
We are two years out from the next election, and Tasmanians want to see a free and fair election. We want our democratic institutions to be not only maintained, but improved, because they are in a parlous state - and the evidence is the decisions that are made in secret with huge implications for the purchase of land around Australia, and the gifting of public open space, Crown land, to big developments.
In the context of this bill, in the context of the decisions that would be made under call-in powers and major projects legislation, this is an essential component. But it is much bigger than this bill, and much bigger than development decisions. It goes to the heart of everything that we do in Tasmania.
In order for us to be able to be confident that we will sail into a place of improving democracy, we need to have that legislation. A commitment from the minister about when the Government will be providing the legislation to the House, to put a rein on political donations and the unholy influence they have over decisions, will be very welcome.
Ms OGILVIE - I will be very brief. I did say that I am supportive of electoral reform; the more transparency we can have, the better. Given that this amendment, and the following one, does relate to how we manage elections, my view is that it is better placed in that push for electoral reform, and I will be inclined to support these kinds of efforts in that place.
I am reluctant to agree for it to go into the major projects bill, because if we do that, then we have to look at all of our acts, and start asserting these type of rules as well - maybe that is a task we think to do.
However, I would like to see some deep thought given to this issue, not just in relation to money that is donated in elections, but all resources that are provided. Having been through a capped election campaign through the Legislative Council process, I do think there are learnings we can draw upon there.
However, I am not going to support this amendment because I believe it needs to be in the Electoral Act, and I certainly would be warmly supportive of those discussions.
Ms O'CONNOR - Mr Chairman, just briefly, the difficulty we have in responding to Ms Ogilvie's contribution is that the review that was established after the 2018 state election into potential electoral reform in Tasmania has stalled.
There have been numerous deadlines that have not been met, and there has been a typically lukewarm response from the Premier, sadly, to the desperate need for electoral reform in Tasmania. In fact, at the last state election when I said we have the weakest donation laws in the country, ABC Fact Check tested that claim and found it to be true.
I note a Labor member has a bill on the table, but in the absence of commitment from government to reforming electoral law in Tasmania - not even a commitment yet to delivering on a review that had deliberately narrow terms of reference - we need to be finding every way we can to install integrity in this piece of legislation, because it is not like many other acts. It is legislation that sets up a nexus between developers and the minister of the day.
We have seen in New South Wales, where they had similar legislation in place, they actually had to rein it in, because what happened was you had a conga line of developers going up to the planning minister trying to get special treatment, so their projects could be declared major projects.
Regrettably, this legislation - and that is why there is so much concern in the community about it - does lay out the foundations for corrupt and improper dealings. I am most certainly not pointing to the current minister - not at all - but through this legislation, it is entirely possible that you will have improper influence and improper dealings happening between a developer and the minister of the day, and that developer - the company they represent - may have given a substantial contribution to the party that the minister of the day belonged to, hoping to be able to influence an outcome to their commercial benefit.
We should, as legislators, be prepared to acknowledge that we do not have good electoral laws in Tasmania, and therefore with legislation like this, it is critical that we bolster it with some integrity provisions, which is why the Greens are supporting this amendment and its associated amendments.
Mr JAENSCH - Mr Chairman, we will not be supporting the amendment.
The major projects bill is an amendment to the Land Use Planning and Approvals Act 1993. It is not the place for political donations reform.
Mr JAENSCH - I was talking to Labor's amendment no. 1 and by extension Labor's amendment no. 2 as well, on a similar topic. My comments on this will apply to both of them.
I had commenced by saying that the major projects bill is an amendment to the Land Use Planning and Approvals Act 1993. It is not a bill about political donations reform. I understand that Labor and Greens together, it seems very clear, are using this as a vehicle as they have other bills in this place, to assume -
Ms O'Connor - So you are correct about this, it is a Labor amendment.
Mr JAENSCH - You seem to be doing it with remarkable enthusiasm though, speaking on this as well.
Ms O'Connor - We are always enthusiastic about cleaning up politics, minister.
Mr JAENSCH - You are doing this together and you are both supporting this amendment, so it is a Labor and the Greens -
Ms O'Connor - If you are implying collusion on amendments, please stop it.
Mr JAENSCH - convergence, more to the point, on this amendment.
That is fine. You can have a strong feeling about this matter. There has been, and will continue to be, other settings for debate on those electoral matters in this place.
The Tasmanian Resource Management and Planning system does not ask who proposes a development, only what it is and how it affects land use. I understand that Labor's first and second amendments seek to prohibit certain persons from having access to statutory processes under our planning system, based on their political association and communications. That is a matter which should be subject to lengthy and informed legal debate with regard to its potential discrimination, its relationship to the constitution and various other matters. It is beyond the scope of this debate here, which is talking about planning assessments using existing laws and a different process for applying them to certain types of projects.
There is another time and place for these discussions.
Ms O'Connor - When will that be, minister?
Mr JAENSCH - Ms O'Connor, I ask you to direct those questions to the Attorney-General, to the Premier and others.
Ms O'Connor - I have and have got nowhere.
Mr JAENSCH - I am not here today to debate those matters.
Ms O'Connor - You should have the flexibility to fix your bill then.
Mr JAENSCH - What I am interested in is getting these planning laws right, to be able to use our existing planning instruments more effectively. I want to send a signal to those who want to invest in Tasmania and get things done that this is a place that has the right settings, the right statutory processes set up and the right attitude to applying them to make things happen.
I am very concerned beyond the legal matters that Labor, having spent the last month telling people that it is going to support this bill to send a message because they want to be part of going forward and planning and growth for Tasmania, is now sending a very different message. That says in their second amendment, if you have donated anything to any political party -
Ms O'Connor - And you are a developer.
CHAIR - Order, Ms O'Connor.
Mr JAENSCH - or a member or a government in the last three years, you are not welcome in this process. You may not participate in a land use planning assessment process. What is the message that is sending about Tasmania at this time when we are saying we need to build our way out of the economy?
Mr Ellis stood here and so beautifully talked about the challenge and the obligation that we have to take Tasmania forward. What would Jim Bacon say about it? What would 'Bluey' Lennon say about what Labor is putting on the table here today? What they are putting on the table says, we are going to put a rope around the planning system in Tasmania and if you have made any donation or provided any support to anyone in any party in this parliament over the last three years you are not welcome here. Shut the door. You are out. What is Dick Adams going to write this up as in his next missive on where the Labor Party has gone wrong? What is going to happen there?
Ms O'Connor - What a trifecta of luminaries you have just rattled off.
CHAIR - Order, Ms O'Connor.
Mr JAENSCH - It has got me buggered what Labor thinks it is doing, saying that it is supportive of this legislation in its intent and principles and then coming in here and putting up a ban on certain classes of people based on their past historical political affiliation. I am going to leave the legal assessment of that to bigger minds than mine but I am very comfortable in stating our party's non-support for the proposed amendments and those matters which are more rightly taken up in an electoral reform debate.
Ms DOW - I am speaking on the first amendment which is critical to the second one but for all intents and purposes the amendments that we have moved as part of this process today are in response to concerns that were raised in the community about a number of issues. We felt that it was important to have those examined in this forum, in the parliament, and for there to be adequate debate about that. That is why we are putting forward these amendments today.
Clause 4 agreed to.
Clauses 5 to 11 agreed to.
Clause 12 -
Part 4, Division 2A substituted
Ms DOW - This amendment goes to clause 60C(4) and is amended as follows -
Proposed new paragraph (c) inserted:
Be accompanied by a statutory declaration made in accordance with the Oaths Act of 2001 and signed by each of the managing director and chair of the board or equivalent of the proponent, disclosing any donation or gift made by the proponent or its agents in the previous three years to any member of the Tasmanian Parliament, any candidate for election to the Tasmanian Parliament or to any political party registered in Tasmania.
The reasoning for this - I have spoken about it before. I do not need to speak about it again.
Dr WOODRUFF - As I understand it, Labor's amendment requires that a proposal that a project be declared a major project be accompanied by a statement that the proponent has not donated to a political party within three years. We have no problems with that proposal but I think it is possible that there is an unintended inaccuracy in that amendment.
We have an amendment to move to the Labor amendment. I will provide that now, and it relates to the fact that a project be declared a major project under clause 60C can be provided by whoever nominates the proposal. It could be a council or a minister as well as a proponent. It is distinct from a major project proposal which is a defined term in the bill. Proposed subsection (7) only prohibits a proponent from proposing that a project be declared a major project but a minister or a council can still do that. I have an amendment.
Mr CHAIRMAN - Dr Woodruff, for your assistance, you have skipped one of Labor's amendments and moved to their third amendment, I believe.
Mr Jaensch - You have two different amendments from the same area.
Dr WOODRUFF - Where is it?
Ms Haddad - On the front page, amendment 2, an amendment to proposed new section 60C(4), inserting a new paragraph (c).
Dr WOODRUFF - That it be accompanied by a statutory declaration?
Ms Haddad - Yes. That is the amendment we are on now. The one below it is a third amendment. New subsection (7) is a separate amendment.
Dr WOODRUFF - We have no problem with that and we are not discussing that at the moment. This is in relation to the amendment you have made to insert before the words 'be accompanied by a statutory declaration' -
Ms Dow - No, it says -
Dr WOODRUFF - Please let me read my proposed amendment to the Committee and then we can discuss it.
Ms Dow - Well, it says (b) in your amendment. Where it says 'include a general description' I think that is one that you wish to amend, not the one we wish to amend.
Dr WOODRUFF - That is our proposal for an amendment to this proposed new section. I am talking about a different thing, which is an amendment to your amendment. We are proposing an amendment to your amendment. We support your amendment in principle and the intention of what you are trying to do, but we believe there is an unintended effect.
I move -
That the amendment be amended by inserting before the words 'be accompanied by a statutory declaration', the words 'if a proposal that a project be declared to be a major project is made by a proponent under section 1'.
By doing that, it provides that whoever nominates a project, which could be a council or a minister, is clarified in this instance. I will circulate our amendment.
This adds something to the beginning of your amendment to clarify that proposed new paragraph (c) should only apply if a proponent has nominated the project. It clearly is not the intention to look at the political donations or other issues other than the proponent. That is our understanding of the purpose of your amendment, Ms Dow.
Ms HADDAD - I have just read this now but to recap what I understand Dr Woodruff's suggestion to be is to insert the words before Labor's second amendment which deals with a statutory declaration having to be submitted.
Labor's amendment intends to ensure that if a proposal to be assessed as a major project is submitted by anybody, be it the minister, the council or a proponent, it must be accompanied by a statutory declaration signed by the managing director or the chair of the board or their equivalent in the organisation of the proponent, disclosing any gift or donation made by that proponent to any member of the Tasmanian Parliament or any candidate or any political party registered in Tasmania.
I believe this amendment to the amendment would be to narrow that scope. So please explain to me, Dr Woodruff, if I am reading this wrong, but I believe Dr Woodruff's amendment would mean that that statutory declaration would only need to be provided if it is the proponent recommending the project be assessed, whereas Labor's amendment suggests that the statutory declaration would be required to be made so people know what donations have been made by the proponent, regardless of who recommends the project to be assessed as a major project.
I think Dr Woodruff's amendment would narrow it and it would mean that the statutory declaration would only need to apply if it is the proponent putting the project up to be assessed, whereas Labor's amendment would mean the statutory declaration would be required regardless of who is putting the project forward for assessment.
Ms O'Connor - So it would be on council to make a statutory declaration?
Ms HADDAD - No, it would be on the proponent to disclose their donations to a member a candidate or a party. Regardless of who refers the project into the scheme to be assessed, there would be a proponent proposing to build the project, so the onus would sit on the proponent to provide that statutory declaration regardless of who refers the project for assessment.
Ms OGILVIE - I think this Labor amendment probably need to sit within the Electoral Act. That is my general commentary on it. In relation to this issue, the amendment could be accepted but I do not think it adds anything except maybe a little more clarity. The amendment as it reads says:
be accompanied by a statutory declaration made in accordance with the Oaths Act 2001 and signed by each of the Managing Director and Chair of the Board or equivalent of the proponent, disclosing any donation or gift made by the proponent or its agents in its previous three years to any member of the Tasmanian parliament, any candidate for election to the Tasmanian parliament, or to any political party registered in Tasmania.
The clause actually does already anticipate that a proponent would prepare a statutory declaration, but in the interests of making things very clear, I do not think it hurts to have to accept the Greens' proposed amendment.
I am not even sure if it does narrow it; they are still talking about a proponent. What I would say is that your proponent might not be a company, and this clause does anticipate that it has a managing director and director.
Ms Haddad - That is why we have the words 'or equivalent'.
Ms OGILVIE - A proponent might be an individual, so in that case, my personal view is you could probably err on the side of accepting this proposed amendment, because it might be an individual proponent, or perhaps words around that. As I say, that is legal drafting stuff. My view is that these kinds of provisions need to sit within the Electoral Act reform.
Dr WOODRUFF - I think the intention of Labor in their amendment is to require proponents and councils and ministers to be clear about political donations. The problem with this amendment, the first part which we are looking at now, is that your new proposed new subclause (7) says -
Ms Haddad - We are not on (7), we are on the one above that.
Dr WOODRUFF - Yes, but you have one that you have provided us is coming up, and within that, that subclause (7) would say, 'notwithstanding anything in this Act, a proponent who has made a donation or gift, whether by itself or by its agents, in the previous three years'.
It is not clear that you are actually trying to do what you have just said in this amendment. If you had, why do you - I am foreshadowing an amendment that is going to come up later, but it is relevant to what we are talking about here. We want some clarity on the purpose of this amendment. That is why we are proposing that these additional words be added in, to make sure that if a proposal that a project be declared to be a major project is made by a proponent under subsection (1), then the amendment which you have for later makes sense.
At the moment, on one hand you are saying it has to be all parties, but in the next you are narrowing it to just 'proponent'. We are asking for clarification about what this is doing.
Ms Haddad - I do not think I can speak again on yours, but I will address that when I speak next.
Mr JAENSCH - Mr Chairman, I sense that in Dr Woodruff's contribution there is some confusion between who refers a project for consideration of its eligibility to be considered a major project, and who the proponent of the actual project is.
Ms O'Connor - There is no confusion in Dr Woodruff's mind about this legislation.
Mr JAENSCH - I know. She told us the first day we announced we were going to have it that she was going to vote against it, so a lot of this is just theatre. It is not actually about questions and answers at all. However, I put on the record that we will not be supporting either amendment.
Dr Woodruff - Minister, point of clarification. I am not voting against this. The Greens are voting against this.
Ms HADDAD - It does go, then, to what Dr Woodruff was just saying, foreshadowing an amendment to our second one. I know it is all sounding very complicated.
To clarify the question Dr Woodruff asked, the second amendment - the new subclause (7) that we are proposing - would actually prevent a proponent from putting forward a project to be assessed as a major project if they have made donations in the last three years, to a member, a candidate or a party.
I know we are not debating that clause right now, but that is what that intends to do: to prevent a proponent who has donated to a party, candidate or member from being able to put forward a project themselves.
What the one we are debating right now does is ensure that the statutory declaration is submitted. The first one does not prevent a proponent from putting through a proposal. It just requires them to sign a statutory declaration. That statutory declaration may say they have made no donations to a party, a member or a candidate - in which case they are eligible to put forward a project for assessment as a major project. So they are related, but they are separate.
Amendment to amendment negatived.
Mr JAENSCH - As per my contribution on the first proposed amendment, the Government will not be supporting this amendment.
Ms HADDAD - We are now back to discussing Ms Dow's second amendment.
For clarity - and there are people watching the debate who might be thinking, 'Where are they up to, what on earth is going on right now?' - let us step back a second and understand that the amendment Ms Dow has just moved would insert a new subclause (c) to clasue 60C(4), which would require a statutory declaration to be made in accordance with OPAC, signed by the proponent, disclosing any donation or gift that they have made to a member of the Tasmanian parliament, a candidate for election to the parliament, or any party registered in Tasmania.
It is problematic, now, because our first attempt to put those two terms, 'gift' and 'donation', have failed the parliament just now when we moved our first definition. Should this amendment be accepted, it is problematic now because those terms are not defined, because we did not get that first amendment through.
What it would do is require transparency, so that the public in Tasmania is aware of who is putting forward proposals, and what their connections and relationships are with government. People, in the first amendment, did reflect on our donation laws - and we do have the worst political donation laws in the country. I have said in this place before that it actually shocked me when I was a first-time candidate at the 2018 election that there were no requirements on me as a candidate to disclose any donations, or disclose any of my spending - notwithstanding that I did not actually receive a whole heap of donations. However, it did surprise me that there was no obligation on me to disclose those.
Labor has long been committed to donations reform. It has been mentioned that we have a private member's bill, which is not yet tabled, but is out for community consultation - and that is a genuine consultation. I am hoping that people in the community will feed back their ideas to Labor. In a nutshell, what it would do is require a declaration of donations over $1000, or cumulative, and it would also place caps on spending for House of Assembly candidates and for parties spending money in House of Assembly elections. It is not everything, but it is a start.
The Government promised to act on this issue, because it is a live issue with the Tasmanian public. There is at least a perception in Tasmania that money can buy influence, and it is incumbent on all of us, as members in this place, to address that perception in the Tasmanian community.
This amendment and the ones that follow go to the very heart of that issue - the fact that people at least have the perception in Tasmania that money can buy influence, and indeed, buy elections. That is not good enough for me, and it is not good enough for the Labor Party.
These are necessary provisions that would ensure that when people are putting forward projects, or when government or councils are putting forward projects, that people are simply made aware of the relationship between those proponents and the government of the day - or, broader than that, any parliamentarian sitting in this place or in the upper House.
I hasten to add that this is in no way a reflection on the current minister or any member in this place right now. I am not alleging that anybody in this place has any untoward intentions or anything of that sort. I hasten to add that very strongly on the record now, because that is not the reason for this amendment.
The reason for this amendment is we are setting up legislation that will endure for a long time, and mechanisms that we put in legislation need to be open, clear and honest.
What this first amendment would do is simply make it a requirement that information is declared under a statutory declaration so that people are not in the dark about what the relationships are between people putting forward major project suggestions for assessment and their relationships those proponents may or may not have with members of this parliament. As I said in my contribution on the Greens' amendment just now, it could be that there is no relationship. It could be that a proponent putting up a project for assessment or government or council putting forward a project for assessment has not made any donations in which case that is fine. If the opposite is true the community deserve to know and understand that. That is the reason for this first amendment.
Ms DOW - The second part of amendment no. 2 is the addition of a new subsection (7) which says:
New subsection (7) is inserted -
Notwithstanding anything in this act, a proponent who has made a donation or gift whether by itself or its agents in the previous three years to any member of the Parliament of Tasmania, or to a candidate for election to the Parliament of Tasmania, or to the party of any member or candidate for election to the Tasmanian Parliament is prohibited from making a proposal that a project be declared to be a major project.
This is just following on from the other amendments and substantiating the argument again about the fact that we had a large number of representations that spoke about their concerns about transparency about this bill. Part of the process of having this debate today is about having that good, full debate about that. It should not come to you as any surprise that we would be wanting to talk about that in the context of this bill.
Dr WOODRUFF - We support this amendment. For the reasons that Ms Dow has said, it is important to shine as much light as possible on to all possible influences that can be placed over decisions as significant as something like a major projects process and approval that this bill seeks to enable. We reject the bill and the process but we support the intention of this amendment. The more information we have about donations and gifts at every level in decision-making in government, within the public service, to ministers for the tendering of contracts, for the approval of major projects, all things like that, ought to be properly scrutinised and be very clear.
Having this period of three years we could certainly argue the time length. There is an argument for it being longer than three years. There are many different ways that this could be constructed but the principle of this amendment we definitely support.
Mr JAENSCH - I reiterate, as I understand it this is to seek to prohibit anyone who has made any donation or gift in a three-year period to any member of any party or any member of the parliament is prohibited from seeking to have their project assessed as to its eligibility to go through an assessment process that is available under law in Tasmania. Noting that in their efforts to prevent ministerial influence that they note that the proponents and the supporters of this amendment note that the minister has no role in the assessment of that project. I am clear about that. Then I confirm again that the Government will not be supporting this amendment because it is ridiculous.
Ms O'CONNOR - The minister's response just then to a proposed amendment which would provide greater transparency around proponents seeking to have a minister declare a project a 'major project' was very revealing.
What the minister told us is that, in government, he does not want to see any restriction on any type of development given to a member of parliament, or a minister, or a political party.
If we did have the courage to enact an amendment like this it would provide certainty to developers. It would let them know that they cannot buy influence if they want to get a major project up in the future.
In fact, it is a really important principle that should be in this legislation. Developers and other vested interests do not donate money to political parties because they wake up in the morning feeling benevolent. They do it because they want to buy influence. That is what we saw at the last state election, and we know that there are millions and millions of dollars, the source of which has still not been disclosed to the Tasmanian people. And London to a brick, some of those donors will be developers who had the major projects legislation on their radar because government had flagged major projects legislation. So a sharp developer would pull out the cheque book at the last state election, make a donation, knowing that it is likely to ensure a favourable eye is cast on them by the government of the day given that, as a developer, they helped to get that government elected through a donation.
It is very telling that this minister finds the prospect of any restriction around developer donations to members of parliament so confronting, and the minister argues political freedom. We would argue that at an election, voters should be free to know who is donating how much money and to whom. They should also believe that planning decisions are made free from the influence of vested interests.
We saw through the review process that started after the 2018 board election, and the narrow turns of reference, that this Government is going to try to argue freedom of speech as an excuse to keep taking money from vested interests, knowing full well that money comes with strings attached. No corporate interest, no developer, no foreign interest, makes a donation to a political party, or candidate, without believing, at some point in the future, there will be a quid pro quo.
This legislation provides for corruption, potentially, and dishonest dealings. That is why there should be restrictions placed on donations from developers to members of parliament. Sure, if you argue that governments should be able to accept those donations, that is fine. But it takes it to the next level where there is a stink about it, when government is saying, 'it does not matter who donates to us. Of course, there is no connection between a donation from a developer and our minister's decision to declare a project a major project', when we know that is rubbish. You cannot argue free speech.
People need to be free to choose, in full knowledge of where the money for political parties is coming from and they need to believe and know that their planning system and the decisions that are made around land use planning will be free from corrupted influences.
Dr WOODRUFF - For your benefit, my understanding from the Clerk is that this clause has a number of sections and we will work with any other members who make amendments in the order in which the sections appear chronologically.
We have an amendment to proposed new section 60C(4), which I have circulated, that seeks to provide some specificity to the proposal that must be prepared for a major project. I move -
That proposed new section 60C(4) be amended by omitting from paragraph (b) the word 'general' and instead inserting the word 'detailed'.
The purpose of this is to require that the proposal being nominated must have a detailed description of its nature rather than a general one. I believe this would pass the absolute standard pub test. It is pretty ludicrous to expect that a proposal for a project that is declared to be a major project only needs to include a general description of the nature of the project.
These are, by definition, major projects. They must pass a number of tests to do with scale, complexity and impact. So there is no way a general description can possibly provide the information that is required at any point in the process. Our amendment simply tightens that up and provides that a detailed description of the nature of the project must be provided.
Ms OGILVIE - That is an entirely sensible amendment which I support.
Ms O'Connor - It wouldn't hurt you to accept this, minister. It improves the bill.
Mr JAENSCH - I can help here. Proposed new section 60C(4) does not relate to the proposal that is to be assessed. This is the proposal that a project be declared a major project for the purpose of having assessment criteria generated and a far more detailed project impact statement developed which the proponent will have 12 months to deliver, because it will be comprehensive and need to address all of the required information from all of the relevant regulators.
The purpose of the proposal referred to in clause 60C is the information required for the determination that a proposal meets those basic criteria of scale, complexity and strategic importance. Therefore, if you have its location and you know it is a hydrogen plant, an airport or a windfarm, there is, with a relatively general explanation, the ability to determine if this is of magnitude and complexity sufficient to be considered a major project and if that is the only decision that the information is used for if more information is required, the minister can seek further information. This is not the information that is used to assess the merit of the proposal with a view to issuing a permit or otherwise.
Ms O'Connor - I gather you are explaining it to us this way knowing that we have read the bills and simply for Hansard record because if you are not it is vaguely insulting.
Mr JAENSCH - I thought I understood from Dr Woodruff's introduction of this amendment that a general statement was clearly not enough to assess the project. This is not about assessing the project; it is about determining eligibility. So for clarification and avoidance of doubt I am offering this explanation.
Dr WOODRUFF - It is insulting that the minister pretends to put matters into my mouth or into my mind that had nothing to do with this. We have clearly read this in detail and what proposed section 60C does is to enable the minister to make a decision that the proposal be declared a major project. Can the minister really expect the public to believe it would be enough for a skyscraper developer in Hobart just to say, 'generally we want to build a building and generally it is going to be high' without talking about the detail of the overshadowing?
We are not talking about the assessment of the project. We are talking about whether it should be declared a major project and go down the track of being assessed. Is it really good enough for the Cambria Green development to just generally talk about the fact that they want to do a big development in an area without saying, in detail, there would be an airstrip, there might be aged care accommodation, it would be on conservation land? This does not put any prescriptions at all on what developers are required to provide the minister. It means this minster is clearly happy to make a decision with the most general waffly terms about what is going to be called in as a 'major project'.
This is the start of going down the track. Why go down the track unless the minister has some details? We are not talking about full assessment here; we are talking about a detailed description of the project. It beggars belief why the bar could be set so low other than to let everything go through and be declared as a 'major project' and put grief, effort and expense and a huge process in train without having to justify it on the basis of detail.
Ms O'CONNOR - What we are operating from - and Dr Woodruff is spot-on here - is the principle that we do not have to say 'yes' to every development proposal. If a minister is making the decision on the basis on scant information - because the general description can be scant information - declares a project to be a major project, then we get down the track and the assessment goes it never should have got past first base because it has all these problems associated with it. You have failure embedded in the planning system from the get-go just because this provision allows a developer to go, 'I want to build a skyscraper in Hobart. I would like it to be 20 storeys high and the outside of it will be blue'. That is a general description of a potential major project.
The reason this sticks in my throat so much is because from the beginning it was very clear that the proposal to put 500 homes and a canal estate in the Ralphs Bay Conservation Area should never have got past first base. There should never have been Crown land consent given by the then minister, David Llewellyn. And what was the consequence of the 'anything goes approach, so just say yes to every single development'? It was nearly a seven-year struggle on a community's part, tens of thousands of dollars in expenses borne by that community, $720 000 in expenses as a result of the assessment that the developer, Walker Corporation, skived off the island and to this day has never paid.
We need to have a set of standards here. I often think of Tasmania as like that beautiful girl at the dance. She has no idea how beautiful she is and she just says 'yes' to the first con man who comes along and wants to swing her around the room. We need to have some standards here. We are a beautiful little island. Of course, we need to have good developments but we should not just be in a position where we are allowing in statute; it is such a low bar for developers to get past first base and have a thing declared a major project.
Ms DOW - We will not be supporting the Greens' amendment but I do have a question about the way in which this information would be presented. Will there be a statutory form or a template that will be consistent across the proponent? Can you explain that to me?
Dr Woodruff - Are you going to be providing your reasons for not supporting the amendment?
Ms DOW - I am just asking a question.
Mr JAENSCH - I draw your attention to proposed section 60F, Contents of major project proposal, page 31 covers to page 34 and keeps going.
Ms DOW - That will be the same standard form that each proponent or application. I am trying to -
Mr JAENSCH - Section 60F, Contents of a major project proposal, outlines the information required in that which was referred to in shorthand as a general description in 60C(4)(b) and unpacks that to describe that a major project proposal in relation to a project is to contain the following information:
(a) the name and contact details of the proponent of the project;
(b) details of the proponent's experience and of the proponent's financial capacity to implement the project;
(c) the name of the project; and
(d) subject to subsection (2), a description of the project, including -
(i) the activities that are proposed to be carried out as part of that project after the construction phase of the project is completed;
(ii) the proposed uses or developments that are proposed to occur in relation to the project;
(e) a map, or description, indicating the location of the proposed land on which the project is to be situated, and subject to subsection (2), a plan indicating generally areas on that land on which uses or developments in relation, et cetera.
It continues through sections E, F, G, H, I, J, K, L, M, N, O, P and Q and then on to subsection (2).
There are several pages of prescription of what information is to be provided. The term 'general' is used to make the distinction between that preliminary proposal and the overview information required to make a determination of eligibility and the far more detailed information required to make a subsequent assessment against the criteria.
Dr WOODRUFF - No, it is not. It means something and it means that you do not have to provide much information.
Mr JAENSCH - If I refer you to proposed section 60F I believe that should satisfy your interest in what is indicated by 'general'.
Dr WOODRUFF - No. It says 'general' in proposed section 60F(2).
Ms DOW - Further to that then, that substantiates why we do not support the proposed amendment in that it is quite a detailed process and there will be some form and function around about what is required each time. We are quite comfortable with that and the way that it is written currently in that subsection.
Dr WOODRUFF - The minister gave you your talking points and the reason why but he is actually not correct.
CHAIR - Dr Woodruff, please. You have had a chance to contribute.
Dr WOODRUFF - I have an amendment to proposed section 12, 60E. The minister was just referring to these later sections and we have an amendment to 60E, which I will read in now. It is:
That the proposed new section 60E in clause 12 is amended by omitting the words 'except with the approval of the minister' from subsection 4.
This is incredibly important.
Mr DEPUTY CHAIRMAN - Dr Woodruff, I will have to pull you up. The time being 3.30 p.m. I shall report progress.
Dr WOODRUFF - Mr Chairman, I was speaking on our amendment to clause 12, proposed section 60E, explaining that the removal of the words, 'except with the approval of the Minister', removes the ability of the minister to waive the two-year waiting period for a project to be resubmitted if the proponent fails to provide a major project proposal.
This is very important. The Government has made a lot of noise about the lack of ministerial interference, and the fact that the minister is at arm's length from these processes.
Well, I expect this is just an oversight on the drafting of the bill, and that, on the basis of what you have already said, minister, about wanting to keep at arm's length from the process, you would accept that clause 12, proposed section 60E(4) should not have the words, 'except with the approval of the minister' because that provides for undue and improper insertion into the process and enables the minister to provide the developer with an opportunity to resubmit within a two-year period.
We reject the whole bill but, in principle, any process like this has to have integrity within it, and there is no reason for the minister to be able to intervene to provide special treatment for a proponent, which is exactly what this proposed subsection does.
Ms O'CONNOR - I rise on that briefly because I feel very strongly that the minister is about to stand up and reject our amendment.
Mr CHAIR - I ask you not to pre-empt the minister, Ms O'Connor.
Ms O'CONNOR - I have been here a bit long, Mr Street.
I simply make this point: there is a risk here of 'land banking' on public lands and we are seeing it through the expressions of interest process for development inside the Tasmanian Wilderness World Heritage Area and other protected lands. A number of the EOI proposals were submitted to government in 2015-16 after the World Heritage Area Management Plan had been fixed to enable those developments. A number of those developments have gone nowhere and they are exclusive use developments potentially for proponents.
For example, the Tasmanian Walking Company, from memory, has three more developments it wants to put into the Tasmanian Wilderness World Heritage Area - none of them have proceeded, thank goodness. That is now five years, and a minimum of four years, where a company has been able to bank land effectively for exclusive use in the Tasmanian Wilderness World Heritage Area. If a proponent can get a project declared a major project and they cannot put forward a major project proposal within two years, there is something wrong with the viability of that project or there is an incapacity of the proponent to deliver that project.
We should not be embedding in statute the escape clause for developers to be able to land bank on crown land. Most of this will be on public land of some sort or another, on crown land, and then the developer will go to the minister of the day and say, 'Mate, look, can you give me another couple of years? Give us another couple of years. We are just organising finance over here. We are working with the architects but we have had to adjust the design.'
It is unacceptable that you can have a project declared a major project and there is not some proposal put forward within a two-year time frame. The people to whom it is the most unacceptable are communities. If you put yourself in the position of people who live in and around Westbury, for example, if the Westbury northern prison is put forward as a major project and in the unlikely event that the Tasmanian Government does not bend over backwards to fast track it, you have a community that has its life on hold for two years. The people of Westbury have already had their lives on hold for almost a full year.
The same for the community in and around Dolphin Sands. For the best part of two years, they have already been trying to stave off that grotesque development and a specific area plan that went to the Tasmanian Planning Commission. We cannot keep doing this to communities. We cannot keep just putting developers first every time and writing legislation that does that. Why should the minister be able to give a proponent who has demonstrated an inability to put a major project proposal together a leave pass to land bank put communities through stress for potentially another two years? And when does it stop? There is nothing in the legislation, no deadline in the legislation. You can have a major project proposal that keeps rolling over.
This is bad law and it points to an act which has given far too much power to the Planning minister, far too little power to parliament, and almost no power to communities.
Mr JAENSCH - Mr Chair, I can confirm for Dr Woodruff and Ms O'Connor that at this stage of the process, there are no permits, rights or reserved unique opportunity being conferred at all.
This is a point at which a project has been referred by either the proponent, the planning authority or the minister into the process to be assessed. In order to be able to do that, a project proposal has to be generated and under proposed section 60E, the minister gives notice to the proponent of the project that they need to put in a proposal so it can be assessed.
The risk of land banking you are talking about does not exist because no permit has been issued and no rights have been secured at this point. This is simply about receiving the required documentation to assess the eligibility to enter the process.
Ms O'Connor - Why would you let a developer have more than two years?
Mr JAENSCH - They do not have more than two years. What happens is, the minister under proposed section 60E(3) writes to the proponent and says, 'I need your proposal to be sent to me. Here is the time frame you have to develop it'. Then in proposed section 60E(4), if they do not submit their proposal by that time, the default is that there is a two-year ban.
This is to stop tyre kickers, to stop nuisance proposals where maybe something is going to happen and it is going to come up in the process. The opportunity of putting the project forward to be assessed for its eligibility to be a major project has been afforded and then it does not come in. If they do not take the opportunity, they are unable to come back into the process for another two years
Ms O'Connor - Without your approval.
Mr JAENSCH - You will find, though, throughout legislation and because you have been so long and have so much experience in this, you will know -
Ms O'Connor - Do not patronise me.
Mr JAENSCH - I am quoting you. You will know that there is a standard arrangement in provisions of this type that provide discretion for extenuating or exceptional circumstances.
Ms O'Connor - What would they be then?
Mr JAENSCH - If a proponent has been written to and there has been a date set for the time when they need to have their proposal submitted and they fall ill, or there is a coronavirus lockdown or some other factor which affects their ability to be able to submit their required proposal by a date, there needs to be the ability to exercise a level of discretion on reasonable grounds where there are exceptional circumstances. This has been written with the same intent as similar provisions elsewhere in the Resource Management and Planning System, including in LUPAA.
If an appeal is rejected, there is a two-year ban on reapplication unless the Resource Management and Planning Appeals Tribunal allows an exemption.
Ms O'Connor - That is quite different from a minister giving an exemption.
Mr JAENSCH - No, it is about the authority that provides the requirement to be able to make an exception for an extension.
Ms O'Connor - Why not give that authority to the planning authority?
Mr JAENSCH - Because in this case, it is the minister who is inviting the proposal and it is the minister who has responsibility for declaration of the project to be a major project. That is a design feature of the whole bill.
Ms O'Connor - That is one of the problems with it - staggering drunk on power.
Mr JAENSCH - I recognise you do not like it, but the provision in here for that 'except with the approval of the minister', is entirely consistent with similar provisions in a range of other acts for those exceptional extenuating circumstances. On that basis I believe the amendment as proposed is unnecessary.
Dr WOODRUFF - I do not find your arguments convincing on any level, minister. The example you give is, if you will excuse me, slightly laughable - the idea that you might need to grant a special exemption because a person is ill. First of all, major projects are not just a person, they are companies and businesses that have a lot of money behind them. By your own definitions they involve scale, complexity and substantial impact for multiple municipalities. We are not talking about one person.
Mr Jaensch - I am glad you get that now because you were saying it was just any project.
Dr WOODRUFF - Do not put words in my mouth.
Mr Jaensch - You just said the words.
Dr WOODRUFF - I am talking about the words that came out of your mouth just then. I am not persuaded that this is anything like reasonable. This is an opportunity for you to give preferential treatment to particular developers over and above the process instead of establishing a planning scheme that has rules and processes -
Mr Shelton - That is just conspiracy theories all over again.
Mr CHAIRMAN - Order, Mr Shelton.
Dr WOODRUFF - that the community can be confident about, that have hard edges that keep ministers away from planning decisions. This is about inserting the minister into a debate. It beggars belief that a business could put in a proposal for a major development and not be able to comply within two years. If they cannot -
Mr Jaensch - The two years is the time that they are not allowed to reapply if they don't meet the requirements. It is not a two-year time frame.
Dr WOODRUFF - Exactly. You have not made any case for why you would insert yourself into the process to be able to allow them to do it all over again in a shorter time frame. All it is is an opportunity for ministerial informants and we do not support it.
Dr WOODRUFF - Mr Chairman, I move -
That proposed new section 60F(1) be amended by omitting the word 'generally' from paragraph (e) and omitting the word 'general' from paragraph (f).
We referred in a previous amendment to the use of the term 'general' and the minister assured us that the specifics would be dealt with in subsequent proposed sections 60E, 60F and I think he might have said another one. We do not see them being dealt with here in a manner which we think is sufficient. Paragraph (e) requires that a map or description indicating the location of the proposed land on which the project is to be situated and subject to subsection (2), a plan indicating generally areas on that land on which users or developments in relation to the project are proposed to occur.
In relation to the contents of the major project proposal, paragraph (f) says a general description of the physical features of -
(i) the areas of land in which the project is to be situated; and
(ii) the areas of land in the vicinity of the areas of land on which the project is to be situated.
This is insufficient for something as important as a major projects proposal. Why would not the minister require information that is specific to the proposal? Why would not the minister require information about who would be impacted in the vicinity of the land?
It is not good enough to talk generally in this instance. It is important for all parties that may be affected by a major project proposal to be clear about the specific places and the details of areas in the vicinity that are likely to be affected.
By definition, a major project as the bill proposes is major in scale, complexity and impact. It is not good enough to have the continued use of the term 'general' in relation to the contents of major project proposals in order for decisions to be made. At every stage there has to be respect for everyone who would be affected by a major project. Everyone who would be a party, who may want to make a submission or a comment about a proposal needs to be informed about exactly what is being proposed at the earliest instance. People cannot be left in suspense wondering how it might impact on them, maybe getting incorrect ideas; maybe information is being withheld intentionally or unintentionally. The large nature of major projects developments mean that everybody has to be given the information at the earliest opportunity. We do not think it is sufficient and we do not understand why the minister would not require at that point detailed information.
Mr JAENSCH - For avoidance of doubt we are talking about the information required in a major project proposal which is a proposal that is then assessed against the criteria for eligibility to be assessed as a major project. This is not the information against which the project is assessed. This is the information required to determine if it meets the test to be considered as a major project and to proceed into the assessment process. This is pre-qualifying as the basis for a decision to proceed into the major projects process.
The reason, again, that the term 'generally' is used, and while there are three pages of criteria about the nature and the type of information minimum to be provided, is to provide enough information to make an informed decision about eligibility to be a major project. That does not require every proponent to go through the full process of design and testing and ground truthing and establishing the full detail of their project, which may take a lot of time and money just to be assessed as to whether they can be a major project and start another formal assessment process.
An example that I will use, because you asked for 'under what circumstances?; if there was a proposal for a windfarm which had what they thought was the prospect of being a good wind resource in an area that they thought worth testing, they would typically test the wind resource. They would then look at the layout of a windfarm, the number of turbines, which parts of the landscape they might occupy. At the outset, what they might identify is an envelope of land within which they might develop a windfarm and put that forward for consideration. Could this be considered as a major project?
Therefore, it is not specific, but it is a general indication of the area of the land and the nature of the development that would be proposed. As a basis for working, would this be, under those circumstances, something that we would assess as a major project.
If it passed that test then it would enter the next stages, whereupon assessment criteria would be developed and a detailed response would be generated to be assessed. This is the stage before that. I note that the subsequent clause 60G identifies that the minister may require further information in regard to a major project proposal, to assess whether it meets the criteria. If that additional information, or a modified proposal, is not able to be provided within a specified period, then that proposal can be taken to be withdrawn by the proponent. That is so we do not have proposals rattling around in the system half-baked for long periods of time, as per that previous discussion with Ms O'Connor, regarding the initial request for a project proposal.
From the basis of that understanding, I suggest that the proposed amendment to replace the words 'generally' and 'general' in clause 60F(e) and (f) are not required.
Dr WOODRUFF - I think you are misrepresenting what these subclauses of clause 60F are relating to. Subclause (e) requires that a proponent provide a map or description indicating the location of the proposed land on which the project is to be situated.
Mr Jaensch - Land. Of the land.
Dr WOODRUFF - No. Of the proposed land on which the project is to be situated, and a plan indicating generally areas on that land on which the use or development in relation to the project would occur.
Subclause (f) asks for a general description of the physical features of the land.
You are talking as though we are expecting an assessment of every impact that could occur in the development. That is another stage.
If I were minister, I would not accept a major project development application from a proponent that did not tell me what specific part of the land was going to be developed. I would not accept that it is reasonable to not be specific about what land in the vicinity was going to be affected. We are not talking about describing how the building is going to be constructed, going into detail about turbine building, the precise location on the land. We are talking about details. About which part of the land is going to be used, and which other parts of land are going to be affected.
Do not forget, you want this major projects bill to bypass local councils. You want it to bypass the opportunity for the community to have a say. You want to take it outside the planning authorities. You want to reduce community's right to appeal. All of these things you are doing, but at the very first hurdle you are not expecting any details, any specifics from the proponent: give us something on the back of an envelope, and we will say 'yes'. We do not think that is a valid response, and neither does the community.
Nothing to say?
Dr WOODRUFF - Madam Chair, I move -
That proposed new section 60H in clause 12 be amended by -
Deleting subsection (2) and inserting the following new subsection (2) to read:
(2) Information may only be requested under subsection (1) before the minister makes a declaration of a major project under section 60O(1); and
Deleting subsection (4) and inserting the following new subsection (4) to read:
(4) Without limiting the generality of subsection (1), the information that may be requested under that subsection includes -
(a) Information as to any further approvals, permissions, licences or authorities, however described, that in additional to a project-related permit, may be required to be obtained by the proponent under an act in order for the project or activities for the purposes of the project to be lawfully implemented or conducted;
(b) Information as to the accuracy or otherwise of information contained in the major project proposal obtained under section 60E; and
(c) Information as to the conformance of the project with determination of guidelines.
Our proposed paragraph (a) removes the requirement for information that has been requested from an agency to be necessary to enable the minister to make a determination. This provides for more free-reining power for the minister to request further information from a department in relation to a proposal.
To be clear, our first amendment keeps the original part of proposed subsection (2) and removes (b) because it is not appropriate for the minister to be constrained at this point about the information that can be requested from an agency so the minister can make a determination.
Mr JAENSCH - I refer the member to proposed section 60H(1), wherein -
The Minister, by notice to a council or State Service Agency, may request the council or State Service Agency to provide to the Minister, within the period specified in the notice, the information, specified in the notice, that is in the possession of the council, or State Service Agency, respectively.
I am advised that means the minister's ability to specify in a notice what information is required is not limited. It is limited only to information in possession of those agencies to be got, so the minister can ask for anything specified in the notice and require it. In that regard there is no need to make extra provision later under proposed subsection (4) to ensure there is a listing of the types of information and purposes. It is covered in proposed section 60H(1) and the minister has an unlimited facility to seek information held by those relevant agencies for the purposes of proposed section 60H. In that regard I consider the amendment unnecessary.
Dr WOODRUFF - I am confused, because the argument you presented is nullified by proposed subsection (2), which constrains what the minister can request, and that is our point. Subsection (2)(b) says the information may only be requested under subsection (1) that you just referred to -
if it is reasonably necessary to enable the Minister to determine whether or not to make a declaration of a major project.
In other words, it is constraining the minister's view about what is necessary for a decision about the proposal. Further, the point of our amendment to subsection (4) is to make sure the minister - and we have specifically said without limiting the generality of subsection (1) information that may be requested can also include information as to the accuracy or otherwise of information contained in a major project proposal and information as to the conformance of the project with determination guidelines.
What could happen, just to be clear, is that a minister might need not only to gather information from a department that the department might make about what the proponent has submitted in their proposal, but the minister ought to also be able to test the accuracy of the claims that a major project proposal has made in their application. The minister should also be able to check that the information from departments can test the project against the determination guidelines. That means that the minister, under our amendment, has no excuses for not getting all the information required for an assessment.
Ms O'Connor - It is just basic due diligence, minister.
Mr JAENSCH - I do not disagree with you. My advice is that the intent of the drafting is that all this information-gathering is pursuant to making a declaration, and the minister may request state agencies, councillors and otherwise for information that the minister needs to make that declaration. There is no fettering of that and to make a declaration is for it to be reasonable to the minister in order for the minister to make the declaration under this part of act. It cannot be constrained. You refer to various qualities of information that might be required. That can be required in the notice.
Ms O'Connor - It might be or it might not be.
Dr Woodruff - Why does it have subsection (2)? It doesn't make sense. It ties your hands.
Mr JAENSCH - The interpretation given to me that what the drafting was to reflect is that the minister can ask for any information they reasonably need to make the declaration and it has to be provided. If you are saying that there should also be the ability to get information they unreasonably need, that is redundant. Any information required held by those parties is to be made available. That is the intent. I think that you have a similar intent. You are looking for a belt to go with the braces on this but my advice is that it is already provided for in (2)(b) and in (1) with the matters specified in the notice. On that basis I still maintain that the amendment is unnecessary.
Dr WOODRUFF - Madam DeputyChair, I move -
A new section 60I that amends the section by omitting paragraph (g) from subsection 1 and inserting the following paragraphs,
(g) The Commission; and
(h) Any other persons or class of persons the minister considers likely to be directly impacted by the proposals; and
(i) Any other persons or class of persons that are prescribed.
These additional (h) and (i) paragraphs provide additional powers for the minister to inform people that the minister considers likely to be impacted or to inform people to be prescribed of the declaration of a project. These are standard additions in bills to provide an opportunity for all classes of persons to be included, in this case in a notification process.
Proposed section 60I runs through all the likely parties but not knowing what particular developments could come up in a particular major project it is plausible, in fact likely, that these may not cover all classes that the minister is required to notify. For example, I am thinking anything that is prescribed through regulations in an act that may be relevant and may affect a body. Therefore that body ought to be informed of the proposal for a declaration. An example could be TasWater or TasNetworks. I do not see those necessarily being covered within the parts in that subsection. So, it is good drafting practice in bills to add in these clauses of 'any other persons or class of persons and any others the minister considers likely to be impacted or any other person or class of persons that are prescribed'.
Mr JAENSCH - My advice on this from people who have worked with similar provisions in a range of different planning settings is that beyond the list of classes of people or people of interests listed, you get into the territory of an undefinable and endless list. The process of defining what 'directly affected' might mean over what area or what classes is very hard to quantify and contain and may set up an obligation that is very hard to meet and might be onerous and costly to implement.
However, I note that included in the list are organisations, like councils, directly involved with the land site and others in a region that might be affected who collectively have a role in representing the interests of those communities and the people in them and have an intimate knowledge of them. This is one of the areas where there has been a deliberate reference to councils as distinct from solely referring to them as local planning authorities. Their role and their ability to advocate for and speak to the needs and sensibilities of their communities is broader than just their role as a statutory planning authority.
There is some offset to the matter you have raised that allows a council to be able to speak for or convey information through to people who might be affected without trying to capture it in another definition in the bill itself. On that basis we do not believe the amendment is warranted.
Ms O'CONNOR - The missing part of the list of persons or entities to be notified within seven days after a proposal for a declaration is made is communities. While I take on board what you said a moment ago about local government's capacity to connect with affected communities, I do not think that it is fair to put that onto local government when you as minister, if you are the minister when this happens, will be making the declaration. I think that it improves the legislation if you give yourself the capacity to inform other persons or classes of persons the minister considers likely to be directly impacted by the proposal.
You will be dealing with communities like the East Coast Alliance, for example, that has spent years trying to stave off one of the worst development proposals ever to be put forward in Tasmania. This legislation is saying that once the Supreme Court appeal is complete, that should that proponent approach you for the Cambria Green proposal to be declared a major project, there is nothing in this clause in the legislation that would allow you to respectfully get in touch with the people who have been working on the ground and are most intimately connected with the whole proposal.
That is one case study but if you are thinking clearly about this legislation and prepared to take on board amendments that genuinely improve it, as minister you would want to have this capacity because the list at the moment is constrained and the missing piece is communities, which is the story of this piece of legislation from start to finish. Here is more evidence of it. I do not understand why you would not give yourself that capacity to let affected communities and community organisations know.
Mr JAENSCH - The advice stands regarding the open endedness of this. However, the amendment, the insertion of (i) - other persons or class of persons that are prescribed which then refers to a subordinate -
Dr Woodruff - To another act, and to regulations in relation to another act, or to -
Mr JAENSCH - No, to a regulation that might define, from time to time, that we can accommodate. It goes to your TasNetworks example, but it is harder to identify a category that would pick up your community organisation as a class, generically and prescribed.
Ms O'Connor - That is covered by proposed section 60H.
Mr JAENSCH - So that is where I would be prepared to support proposed section 60I, but not proposed section 60H.
Ms O'CONNOR - On that, can I ask: do you wonder what the effect would be of giving so little ground on this amendment? I am actually quite gobsmacked that you have even come this far, millimetres though it is, because what that then counts on is that there is a regulation. Are you able to flesh out to the Chamber what a regulation might look like that allowed for community organisations such as the East Coast Alliance or the Planning Matters Alliance or Westbury Residents Against the Prison or S.O.L.V.E. on the north-west coast?
It is actually not good enough just to accept part of the amendment, because that then counts on regulation, which may not have the effect that we want this legislation to have here. I think the nub of it is actually in the amendment to clause H -
Any other personal class of persons the Minister considers likely to be directly impacted by the proposal.
That is the section of the amendment that gives you the greatest flexibility, but also gives you the greatest allowance for you to be able to, as minister, should you be on a brink of declaring a major project, to let affected communities know.
We have to stop shutting communities out of these conversations. It leads to distress and division over land use planning in Tasmania.
We can do better as a parliament, surely, minister. Surely, we can.
Ms DOW - I want to ask a further question about the regulations. We raised this in the briefing we had late last week about the consultation process that will occur around those regulations. You have provided the example of councils being responsible for sharing information about the proposals with their communities. I wonder if you could provide some concrete examples of how that communication might occur with local government, and whether in fact you had consultation with local government about that at this point?
Mr JAENSCH - Local government has been consulted on the bill through its various iterations. Individual local governments as well as their representative bodies have made representation to this, and given us feedback on their comfort and otherwise with clauses throughout.
I do not have an example for you on how that communication role of local government in these cases works. However, it is very much in the intent of the bill, as per my statements in the second reading speech, that we consider it important that councils referred to throughout the bill are recognised to be operating as representatives of their communities, and in their communities' interest, and not solely as planning authorities in this context. So in that regard, councils would be taken to be performing that role, as they do now in other contexts.
Beyond that, I will stay with the advice I have been given regarding the draft and the amendments proposed. I would be prepared to support the inclusion of 'the persons who may be prescribed', but not the more broad and open-ended reflection on others likely to be directly impacted, because of its inability to be defined.
Ms O'Connor - But it gives you the discretion to decide that, minister.
Mr JAENSCH - I will go with my advice from the department and the drafters on why -
Ms O'Connor - On why it is too messy to directly involve communities. It is unfair to place that burden on council.
Madam DEPUTY CHAIR - Ms O'Connor, you have already spoken twice on this amendment.
Dr WOODRUFF - The purpose of this amendment was really to tidy up the shopping list the Government provided. Minister, you wanted to avoid adding a shopping list, but the point is that these clauses are standard in bills that come before us all the time. What it does is provide a get-out-of-jail card for the minister in the circumstances that the bill has not been able to fully identify every person, in this instance, who would need to be notified of a proposal for a declaration.
We have listed already, Ms O'Connor and I, the possibility for bodies that are prescribed under regulations, such as TasNetworks and Taswater, very commonly would be called in - but they are not listed in the shopping list you have here, and also the communities affected.
We are not talking about people who get to have a say about the assessment process. We are talking about people to be notified of a proposal for declaration, and given major projects proposals. This is standard stuff. It is all in the power of the minister to decide; proposed section 60H is all about the minister considering. The minister has the ability to make those decisions. What we are trying to do is fix this proposed section for you, and I hope you reconsider your view and add H in as well as I.
Mr JAENSCH - My position stands. By way of explanation for context, this is the process of notification of a proposal for declaration before the declaration is made. If a declaration is made, there is a further notice-giving process, which includes gazettal, newspapers and a far broader public provision of information - which itself precedes the development of the assessment criteria, the project impact statement and the whole assessment process that follows.
The broader community of interest is informed of the project -
Ms O'Connor - After a declaration has been made.
Mr JAENSCH - after it has been declared to be a major project. Prior to that, there is a more defined list of people who are contacted, with a view to seeking their input on whether it is declared.
Again, I am happy to support what is written now as an insertion of proposed section 60I -
Any other persons or class or class of persons that are prescribed but not the inclusion ] listed in H.
Ms O'Connor - You may have to amend that. Can we get some advice, because there is an amendment before the Chamber which the minister is proposing be amended? You would need to have, for clarity, (g) as well -
The Commission and any other persons or class of persons that are prescribed.
So, you can amend our amendment by removing H.
Mr JAENSCH - Yes, that is my intention, to amend the amendment to remove '(g) the Commission', and replace it with '(g) the Commission; and', and new paragraph '(h) any other persons or class of persons that are prescribed'.
Amendment to the amendment agreed to.
Amendment, as amended, agreed to.
Ms O'CONNOR - Madam Deputy Chair, I move -
That clause 12 be amended in new section 60J by inserting after subsection (5) the following new subsections -
(6) The commission, as soon as practicable after issuing determination guidelines, must provide the Clerk of each House of Parliament a copy of the determination guidelines.
(7) A Clerk of the House of Parliament must, as soon as practicable after receiving a copy of determination guidelines under subsection (7), cause the determination guidelines to be tabled in the House.
(8) Determination guidelines cease to be in effect if -
(a) the Commission revokes the determination guidelines under section 60L; or
(b) either House of Parliament passes a resolution disallowing the determination guidelines.
(9) If determination guidelines are disallowed under subsection (8)(b) the Commission must, as soon as practicable -
(a) public in the Gazette and in a newspaper that is published and circulates generally in Tasmania a notice specifying the determination guidelines have been disallowed; and,
(b) must issue determination guidelines under section 60J(1) in their place.
The purpose of this proposed amendment is to make sure you have that extra level of parliamentary oversight of determination guidelines that will have been prepared for a major project. It reflects sections 16 and 17 in the State Policies and Projects Act 1993. While the minister is likely to say, as he did yesterday, that there is no real relationship between the State Policies and Projects Act and the major projects bill because if a project is declared a project of state significance other statutes and planning provisions are suspended, but this legislation -
Mr Jaensch - No, they are not.
Ms O'CONNOR - Isn't that what you said, that it overrides everything once it becomes a project of state significance? What was it you said yesterday?
Mr Jaensch - Sorry, I thought you were referring to major projects.
Ms O'CONNOR - No, I was referring to what happens with projects of state significance. That argument does not hold because this legislation is very clear when you go to proposed section 60M(4) on page 49 that a project that is to be situated on an area of land may be declared to be a major project even though a use or development that is proposed to form part of the project is prohibited under a relevant planning scheme.
Usually land uses that are prohibited under a planning scheme are prohibited for good reason; there is good environmental or social reasons that a particular land use on an area of land or a tenure of land is prohibited. We are dealing with determination guidelines for a major project that may not be compliant with the land use in the relevant planning scheme. It is a departure we think that requires parliament to have more oversight, and no good government should be fearful of parliamentary oversight.
This is the place where we represent our communities. We come here and do our best every day to make good law. Given that the major projects bill allows for developments that would otherwise be prohibited, the determination guidelines should be a disallowable instrument. Parliament should be given the opportunity to examine those guidelines. That is good planning process and that will help to instill some measure of trust in the process. If communities know that a determination guideline and the declaration of major project will come before the parliament, that will be a comfort to them because it is another layer of examining the decisions made by the minister and the decisions that are made about the guidelines that will wrap around this project. There should be a disallowable instrument.
What is being proposed here is not only to be able to bypass planning schemes and have projects that are prohibited, but through all of this legislation, once it is passed, to completely bypass parliament. Not even a project of state significance does that and there is not that much difference when look at the criteria for declaring a project a project of state significance or declaring it a major project. The POSS list is a little longer and we think a good government should be comfortable with laying on the table with both Houses of parliament the determination guidelines as a disallowable instrument and if parliament wants to examine that disallowable instrument it has the opportunity to do so.
We commend this amendment. We think it is really important that there be a measure of parliamentary oversight over major projects guideline and declarations.
Mr JAENSCH - The member who just resumed her seat made reference and parallels to disallowance under projects of state significance, which I understand for the assessment guidelines for those projects of state significance, the guidelines under which the project itself is assessed subject to disallowance in both Houses of parliament. In this case we are talking about the development of the determination guidelines which are used to assess the eligibility of a project to be considered for assessment under the major projects process.
In this case, this is the expert advice from the highest planning authority in Tasmania, being the Tasmanian Planning Commission. It is to guide the minister's delegated decision-making so the minister should take guidance from the Planning Commission rather than the parliament deciding. There is a principle here of parliament revoking the Tasmanian Planning Commission's expert guidance.
The other matters that you raise in terms of precedent and bypassing parliament and dealing with matters that are prohibited under planning schemes, I understand routinely these matters arise in the context of section 43(a), combined development applications in rezoning proposals.
They are for dealing with matters that are not provided before in planning schemes, and therefore the rezone is required. They bypass parliament because it involves the TPC operating under legislation that has been decided by parliament that gives them to powers to do that.
There is nothing new in any of this. These are existing elements of the planning scheme operating in a similar capacity. Like the balance of the whole major projects process they are assembled in a way that works for complex projects that are beyond the normal capacities and roles of local government or other existing decision makers in the system to deal with because of their scale of complexity.
There is precedent for every part of this proposed legislation. On this one, we would not support the amendment, primarily on the principle that parliament should not be overruling or revoking TPC's guidelines when it is operating in a capacity that it normally does under existing legislation.
Ms O'CONNOR - I thought that was a pretty weak response, minister. It is disappointing that you are not prepared to have that extra level of parliamentary oversight. I note that the determination guidelines only give you guidance anyway. It just points to a piece of legislation that hands far too much power to the minister, gives no power to the parliament, and no power to communities.
Ms DOW - Madam Chair, we will not be supporting this amendment. The Tasmanian Planning Commission is independent and in setting those guidelines it adheres to that independence.
The whole point of this legislation is it is at arm's length from politics. We are talking here about the eligibility process. We just do not think there is a role for parliament in that, because that brings politics back into the process. We look to strengthen the independence of the Development Assessment Panel which actually makes that ultimate decision about whether the permit is issued. We seek to do that through our amendments by increasing the independence of that panel.
Contents of determination guidelines
Dr WOODRUFF - Madam Chair, I move -
That clause 60K(4) be amended by omitting 'the determination guidelines' and inserting 'unless the contrary intention appears, the determination guidelines' instead.
What we want to fix up here is that subclause (3) only says that the determination guidelines must provide guidance to the minister. This is a critical matter, because we are now into the content of the determination guidelines. That will determine how all projects will be considered and how specific projects will be assessed.
This amendment ensures that the Commission's determination guidelines are able to limit the matters that the minister may have regard to, but also to ensure that the minister is not only limited to considering matters contained within the guidelines. In other words, this amendment enables the minister to consider additional factors to what has not been included in the determination guidelines but it constrains the minister to conform with what is required by the Tasmanian Planning Commission in its determined guidelines.
What we are seeking to do is to hold the minister to account, to require that the minister must adhere to the determination guidelines but not to limit the minister's ability to have regard to other factors that have not been prescribed by the Commission in the determination guidelines.
Mr JAENSCH - The advice I have is that this is not necessary, but does not present any complications. On that basis, we would be happy to support the amendment as it is proposed.
Dr Woodruff - Fantastic.
When project is eligible to be declared to be major project
Dr WOODRUFF - Madam Chair, I move -
That clause 60M(2)(b) be amended by omitting 'of interest to or for the benefit of' and inserting the words 'likely to have a detrimental impact on or fulfil a significant public need of' instead.
Proposed section 60M covers when projects are eligible to be declared a major project. This is the heart of what projects could be declared a major project. They must have two of three attributes. Subclause 2(b) at the moment says whether the activities that are proposed to be carried out on the land after the construction phase of the project is completed are of interest to, or for the benefit of, a wider sector of the public than resides in the municipal area or municipal areas in which the project is to be sustained.
Our view is that it does not go far enough to ensuring that the public interest is maintained in major projects and that they must take account of potential detrimental impacts on other sectors of the public than resides specifically in the municipal area.
As you said, major projects planning processes are required because they are much larger than a local council area and have more impact. This amendment seeks to make sure that the attributes of projects of significant scale and complexity must include whether it is likely to have a detrimental impact on, or fulfil a significant public need, for people who live outside the municipal area. For example, it would be hard to maintain that whilst the project may not be of a large scale and complexity, it would be hard to maintain that a cable car, for instance, fulfils a significant public need for the people of Hobart, or indeed Tasmania. In fact, it would be very hard to maintain that the Cambria Green proposal would not be likely to have a detrimental impact on surrounding communities or the interests of the public. It is very hard to maintain that a proposal such as Cambria Green which, as has been described by the proponents so far, would create a closed community near Dolphin Sands. Essentially, that would benefit only the developer because, as we know from what has occurred in other places, what is being proposed as, I recollect, is a Chinese retirement village. That would not be staffed in the majority by local people; it would not provide income to the local community. It would include an airstrip which would have a massive impact on people outside that area and it would affect Moulting Lagoon, which has a very huge detrimental impact. It is clearly hard to demonstrate by any measure that it fulfils a significant public need.
Were those tests to be in there, demonstrating that third eligibility criteria that the project is of significant scale and complexity would be hard to meet.
Mr JAENSCH - On the face of it, the proposed amendment is very similar in its intention to what is there now. In the way you have described it, though, I think that the introduction of something like 'significant public need', which begs the definition of 'need', is getting narrower than the broader matter of benefit. On that basis, it will stay with the language that we have now and not support the amendment.
Dr WOODRUFF - Madam Deputy Chair, that is very disappointing because the point of this is it would be hard to demonstrate - that is exactly right. When the test there at the moment of whether a project has significant scale and complexity has only to demonstrate that it is for the benefit of a wider sector of the public, that can be a whole lot of spin. This is what PR companies spend a lot of money extracting from clients so that they can go into overdrive and come up with all arguments about the benefits for the public. However, the need for the public to have a development, that is a much higher test and a much more meaningful test that has to be passed. I think you have missed the point, possibly, about the importance of the difference between something being of interest to the wider community and whether it is going to have a detrimental impact on them or not.
Something can be of interest to the wider community, that is the most general and vague term, but whether it has a detrimental impact is quite precise and far more measurable. For example, they are the sorts of things that would get to the heart of the interests of people who are walkers and fly fishers in why they care and have an interest in what happens in Lake Malbena. It is difficult otherwise. You can talk about the scale and complexity; you can talk about the project being of strategic importance to a region - all of which we would reject. Even if it passed those tests, it is hard to imagine that it would have anything other than a detrimental impact on the nature of that beautiful place and the wilderness. That is why there are tens of thousands of people supporting the appeal process against the decision of the Government to override the council and to come in and back the developers and to try to get it up at whatever cost.
There are so many people who want to have a say because they love that place. They love the solitude, they love the quiet, they love the fact it does not have helicopters flying overhead. It has a detrimental impact on people. Their voices should be heard in the eligibility criteria. They should be able to have a say before a project can be considered to be eligible to be declared as a major project.
Ms O'CONNOR - I have a question on this section.
In proposed section 60M(4)-
A project that is to be situated on an area of land may be declared to be a major project even though a use or development that is proposed to form part of the project is prohibited under a relevant planning scheme.
I guess in some ways that is the whole purpose of major projects legislation, to enable projects that would be otherwise prohibited under a planning scheme for a whole range of reasons and not allowed because it is not good land use planning.
I am interested to explore with you how much free rein there is within this legislation, given that there is a complete capacity not to apply a planning scheme for a particular area. Does this mean the project that is declared could be, of course, a skyscraper, a cable car? Obviously, you plan to declare the transmission line which will go through vast tracts of forest on the north-west coast, the Westbury prison and the Cambria Green proposal.
Can you confirm that this legislation ensures that developments that are not compliant with planning schemes will be assessed and maybe approved even though they would otherwise be prohibited? That would include skyscrapers, mega-retirement villages and a crematorium on the east coast for Cambria Green, a northern prison and a potential cable car up kunanyi? All of these development proposals - and I am not talking about DAs in the hard sense of the word under a planning scheme - but all these proposals have division attached to them. They have community distress attached to them, and this is the nub of it because those communities know that. This legislation will enable developments like the ones that are causing such trauma in their communities. It will enable it.
Mr JAENSCH - I note we have strayed off the amendment and that is the item of business we are on. The Planning Commission routinely receives applications via local planning authorities on behalf of proponents to change zoning, to assess whether to, and ultimately in some cases where it approves, make changes to planning schemes to make permitted things that are otherwise prohibited. This happens. It is an existing power that is routinely used every day right around the state, without headlines and sensation under the Tasmanian Planning Commission's process for assessing these things against a whole range of statutes and state policies, regional land use strategies, the objectives of the LUPA Act laid out in Schedule 1, these all same rules apply here. This is not a new or remarkable power. The decisions are made by the same Tasmanian Planning Commission under the same legislation, under the same codes of practice and using panels -
Ms O'Connor - It is a different process because you get to declare it a major project.
Madam CHAIR - Order, Ms O'Connor. Allow the minister to speak, please.
Mr JAENSCH - The minister has no role in any of these assessments, Ms O'Connor. I know you want to keep working the margins but the powers you are talking about exist now.
Where you have made reference to a range of matters, we have been explicit in the final draft of the bill we are now debating that the special local planning decisions and overlays, the SAPs, et cetera, that will govern things like building heights in the Hobart CBD and a similar arrangement being developed in Launceston, there will be special regard for those at many stages through the process so that specific local planning consideration that has been given above and beyond the generic provisions of the planning scheme must be taken into account. They are not gleefully overridden.
The same planning commission that conducted those assessments and approved those SAPs, et cetera, will be making the assessment on a major project. The TPC cannot bypass itself. The bill ensures that those matters are definitely considered. The transmission line in the north-west you talk about is already entered into the MIDA process. Cambria Green is not a development project that can be considered. We have been as clear as we can about this throughout the process.
As to the specific amendment, we do not support it.
Ms O'CONNOR - I move -
That proposed new section 60O be amended by -
(a) deleting from subsection (3) the words 'if any'; and
(b) inserting the following new subsections after subsection (4) -
(5) The minister must cause a declaration of a major project to be laid before each House of Parliament within the first 10 sitting days of the House after a declaration is made under subsection (1)(a).
(6) A declaration under subsection (1)(a) is of no effect until it has been approved by both Houses of Parliament.
(7) For the purposes of subsection (6), the House of Parliament is to be taken to have approved the declaration of a major project if a copy of it has been laid on the table of that House, and -
(a) it is approved by that House; or
(b) at the expiration of 15 sitting days after it was laid on the table of that House, no notice has been given of a motion to disallow it or, if such notice has been given, the notice has been withdrawn or the motion has been negatived; or,
(c) if any notice of a motion to disallow is given during that period of 15 sitting days, the notice is, after the expiration of that period, withdrawn; or the motion is negatived.
This is a similar amendment to the one I put previously. However, this one is much more important. I did listen carefully to what Ms Dow said about the independence of the Tasmanian planning system, and I most certainly support that and take it on board. That is the basis on which I did not call a division, in relation to having a disallowable instrument cover the guidelines for a major project, but this is a critical amendment.
It is the same provision, in large part, that is in the State Policies and Projects Act 1993, which requires the minister, once a project of state significance is declared, to lay upon the table a notice declaring a project of state significance.
The reason this is so important is because this is the one mechanism we can put into this legislation that allows for scrutiny of the minister's decision to declare a project of state significance, in the same way the minister is able to be scrutinised should a project be declared a project of state significance.
Minister, the issue here is that you make a decision to declare a major project. As it stands right now, all you have to do is publish in the Gazette declaring the project to be a project of major state significance or not - and that is it.
The first part of this amendment, I should have said at the outset, is to make sure that there is no capacity here for the legislation to reflect the possibility that there will not be determination guidelines. At the moment 60O subclause (3) says -
In determining whether to declare a project to be a major project, the Minister is to have regard to the determination guidelines, if any.
Well, that is not good planning. That is not good process. If there are not determination guidelines in place to guide the minister in declaring a major project, what criteria, what guidance, would there be for a minister? You cannot have those two words in that section of the legislation.
I am not going to beg, but I implore you to look very carefully at this amendment. It is no different from the State Policies and Projects Act. It potentially gives you cover, as minister, for a decision made to declare a major project. It will give comfort to communities such as the Westbury community, potentially people at Dolphin Sands, residents who are concerned about skyscrapers in Hobart and Launceston, and those of us who will never let a cable car be built up kunanyi. It gives that layer of scrutiny which is entirely absent from this legislation without it - entirely absent.
It is one thing to say - and I agree - that we should let the Planning Commission prepare the determination guidelines. It is quite another to let a minister declare a project to be a major project, and that all he has to do is to have that noted in the Gazette.
Madam Deputy Speaker, it is very concerning that this provision was not in there in the first place, because the minister should know his way around the State Policies and Projects Act. There is precedent for making sure that if a large, high-impact project is to be declared a major project, or a project of state significance, for example, there is a precedent for parliament to have a role.
And minister, it must be given a role, because it is there that there will be an opportunity to scrutinise the judgments you make about whether to declare a project a major project.
At the moment, the way the process maps out through this legislation, you can declare a major project, then there is an assessment, there is a determination on the basis of that assessment, and the only recourse a community has is judicial review. That is manifestly unfair. It is bad planning process, and it is insulting to communities and this place.
We strongly encourage the minister, given how much power this bill will vest in the Planning minister, to have at least this one stopgap, this one capacity, for parliament to scrutinise a minister's decision to declare a major project.
We believe this is a critical amendment.
Mr JAENSCH - I have addressed this matter in the summing up on the second reading speech, as this was a matter Ms O'Connor raised in that context.
The declaration of a project to be a major project simply admits it to a process of being assessed under all the relevant acts and regulations by their regulators under their acts. There is no additional, or new, or novel, assessment done.
Ms O'Connor - But there is a determination by you, which is not able to be scrutinised.
Mr JAENSCH - The pathway for a project to become declared, to then proceed through the process of being assessed that way, includes, as is written in the bill -
A consideration of its eligibility in terms of the objectives of LUPAA, relevant state policies, Tasmanian planning policies.
It needs to be not inconsistent with the relevant regional land use strategy -
Ms O'Connor - How is that different from a POSS?
Mr JAENSCH - Well, a POSS only has to have regard for state policies. Nothing else. None of these other requirements applies.
In addition, as we have added in the most recent draft, those special local planning controls, those overlays that are created for specific areas, like SAPS, must also be regarded.
The project also has to meet the criteria laid out in the bill - taking on board the advice from the TPC in the form of the determination guidelines, and after seeking and considering the advice of the Planning Commission, state agencies, local councils, other councils in the region, the landowners involved, the neighbouring landowners, and their tenants.
Then the minister needs to make that declaration, that decision, and account for it in terms of all of those things.
Ms O'Connor - Account for it to whom?
Mr JAENSCH - To everybody.
Ms O'Connor - How? By lodging the declaration in the Gazette?
Madam CHAIR -Order, Ms O'Connor, you will have another opportunity to make a contribution soon.
Mr JAENSCH - The proposition here is that that is bad planning and instead all these matters should be laid on the table in both Houses of parliament and either not debated at all or debated by the representatives of political parties in the course of the day's debates and ended up back with a political decision, not one that is based on all of those other things, all of those requirements, all of that advice and all of those guidelines. This is for the purpose of allowing something to present itself to be tested under all the relevant legislation. It is absolutely sound planning practice because it involves all of the relevant tests and then some and the minister is accountable for having passed these tests of eligibility.
Ms O'Connor - How are you accountable?
Mr JAENSCH - There are two ways. One is by publishing the decision and the reasons for it and then, in the subsequent stages of the no reasonable prospect test, the development of the assessment criteria and the application of the assessment criteria by all the relevant regulators, these same matters are tested again. There is a double-triple blind test of a project eligibility by the minister first, based on advice from a range of expert bodies like the Tasmanian Planning Commission, then again by the panel in its no reasonable prospect test, then again in the development of the assessment criteria by the panel on the advice from all the relevant regulators, and then again in the assessing of the proponent's proposal against those criteria. It is tedious repetition but there is a test applied at four stages as to whether this is a suitable project to be assessed under this act.
What we are seeking through this debate and bringing this bill through the parliament is parliament's consent for that process to be approved so that projects and decisions can proceed through it. On that basis I do not support the introduction of a disallowable motion as proposed in the amendment for the reasons that it is not required to ensure the propriety and scrutiny of the decision to declare a project and also because it introduces two things that the rest of the process seeks drive out of the whole process of declaration and assessment, a time delay which can be significant, because 15 sitting days of two Houses of parliament commencing at the wrong time of the year can cost months.
Second, it reintroduces a political decision at the beginning of the process, which is what we have to sort to drive out because a political decision cannot be anticipated by reading what the rules are and what you have to do to meet them. There is an uncertainty and a range of other considerations brought to bear outside of the planning requirements which create uncertainty for these projects. That is why we have built this process the way we have and why we have built so many safeguards and checks into it. We will not be supporting the amendment.
Ms O'CONNOR - I note, minister, that the only uncertainty you appear to be concerned about is the uncertainty faced by developers over potential major project declarations. The point I made earlier about the uncertainty that communities live with when these obnoxious developments are landed in their lap I will simply restate. That uncertainty does not seem to have crossed your mind.
Mr Jaensch - That is why we have planning rules. That is why we have all these things it is being assessed against. That is what they are for.
Ms O'CONNOR - I will tell you what we have, we have parliaments to hold ministers accountable. You said, 'I will have to account for it, my decision', and then you rattled off registering at the Gazette and talking to relevant regulators. There is nothing that requires you to even table that you have declared a major project, even to let the House know other than that it is in the Gazette. We deal with compulsory acquisition of land in here all the time. There is something laid on the table that says you are going to build another road.
It is offensive to a representative parliamentary democracy that you can see this as an impediment to developments and the only concern you have is the uncertainty it places on developers. It is a political decision when a minister in a government makes a decision to declare a project a major project because there is considerable discretion to you through the guidelines process in making that declaration. The parliament should be able to examine the decisions you make.
Mr Jaensch - I have been through the criteria. There is not unlimited opportunities by any stretch.
Ms O'CONNOR - Yes, but the guidelines only guide you. That is the bottom line. You are guided by some guidelines and then you make a declaration. The only way the people of Tasmania will know you have made a declaration as a major project is if they happen to see it in the Gazette or someone passes that information on to them.
It is so offensive and insulting to communities that you have not even thought there might need to be some coming back to parliament when we are declaring a major project. It clearly did not even cross your mind and that speaks volumes.
I have a form of post-traumatic stress disorder from the Ralphs Bay experience so I empathise with these communities because it is your whole life. There is work that you cannot do, there is money you cannot earn, there are children you vaguely neglect because you have to give everything you have to protecting your place. It is so insulting to good people all over Tasmania, who you represent in your seat of Braddon, not to at least have some accountability mechanism in the legislation. Not to even have to table and let parliament know you have declared a major project. Minister, that stinks. It is offensive.
We live in a parliamentary democracy. You are an elected representative and you are elected into this place by people in your seat of Braddon. You need to be answerable to the people who elected you and put you in this place, and to the people of Tasmania. It is utterly shameful that there is no recourse and no parliamentary oversight of your decision to declare a major project. Nothing. You do not even have to table the declaration. It is scandalous and offensive.
After listening to Ms Dow I hope Labor has a good look at this amendment, or will Labor decide that it is okay to give all power to the Planning minister to declare a major project and all he has to do is slip a notice in the Gazette? You too represent your communities and you should support an amendment that at least gives parliament some oversight of a decision to declare a major project that potentially will have a huge impact on the lives of the communities that you represent, who elected you and put you in here. It is appalling.
The minister can declare a major project, stick a notice in the Gazette and swan off and answer to no-one. It is disgraceful.
Ms DOW - I have a question for the minister around proposed section 60O(3) and the words 'if any'. My understanding from the bill in proposed section 60J(1) is that 'The Commission must issue guidelines'. Why would you put 'if any' in there, particularly when proposed section 60K(5) of the determination guidelines is around giving regard to local planning provisions, which is absolutely essential and something you have determined to make clear in the bill's third iteration. I wonder why you would then include 'if any'?
Mr Jaensch - Give me the reference, please.
Ms DOW - It is at the end of proposed section 60O(3).
Mr JAENSCH - In specific reference to Ms Dow's question, there is the requirement for the commission to prepare the determination guidelines. From the commencement of the act, the commission has six months within which to prepare the determination guidelines. These are generic guidelines that will be used to inform the application or the test against the criteria in the bill. This acknowledges that there may be a time between the commencement of the act and the creation of the guidelines.
During that time, under section 60I, the minister must still be seeking advice from the Tasmanian Planning Commission on whether a proposal is eligible to be considered as a major project. In this case, my understanding is that the advice from the Planning Commission will be specific regarding that proposal, even in the absence of a generic determination guideline. This is the subject of another amendment that has been foreshadowed.
The reason for the 'if any' is because it acknowledges that there may be a period in which a proposal may be provided or referred for consideration but in which time the determination guidelines may not yet exist because the Planning Commission needs time to develop them as generic guidelines. However, there are other provisions that ensure the Planning Commission is still providing specific advice regarding the eligibility of that proposal.
Ms DOW - I will speak now to the amendment. We will not be supporting the Greens' amendment this evening. This process already exists through the Projects of Regional Significance Process, which we introduced in this place in 2009, and right now the minister could have made a declaration of a Project of Regional Significance be assessed by an independent panel. That could have happened through that time period so this is not unprecedented.
Ms O'Connor - We did not support that legislation.
Ms DOW - That does not surprise me.
The point I want to make is the point in time where there is an impact on a community is when there is an assessment made and a permit is issued. The independence of the Development Assessment Panel which makes that decision is absolutely critical. That is why we have also introduced our amendments around the strength and independence of that assessment panel, which then determines that permit and whether that project actually gets up within a community.
The other aspect I wanted to talk about was the increased community participation, which is also around one of our other amendments, the right of appeals process. This has been raised as a significant concern to the community, and so we seek to address that issue and the right of appeal both for proponents and those in the community who wish to appeal the decision of the independent panel at that time. We do not want to see politics interfere with planning decisions in Tasmania. That is why we have supported the intent of this bill right throughout the process. For this then to come back to the parliament to have political oversight, we do not support that.
Ms O'Connor - It is a political decision that the minister makes.
Dr WOODRUFF - Proposed new section 60P on page 52 relates to circumstances in which the declaration of a major project can be made. I move -
That section 60P be amended by inserting the following new paragraph after paragraph (a) of subsection (1) with numbering to be determined by the drafters.
'determination guidelines are in force and the minister is satisfied that the project is consistent with those guidelines; and'
Subsection (1) of 60P says that the minister can only declare a project to be a major project if the minister considers the project to be eligible and has considered the advice, if any, provided in relation to the project. This addition we propose ensures that major projects can also only be declared if determination guidelines are in force and the project is consistent with those guidelines.
This goes to the necessity for the Planning Commission to have provided determination guidelines. They must be in force and the project that the minister would declare a major project must be consistent with those guidelines for clarity, so there is no possibility that the determination guidelines from the commission, which forms such an important part of directing what a major project can do and not do, must be consistent with the project the minister has declared.
Mr JAENSCH - As noted in my contribution on the last amendment, the bill provides that the Planning Commission prepares determination guidelines which guide the minister in applying the eligibility criteria laid out in the bill. The Tasmanian Planning Commission has six months from the commencement of the act in which to prepare those guidelines. They are to be generic guidelines that can be applied to all projects seeking admission to the process.
In the initial period during which the act has commenced but the guidelines are not yet in place because the commission has not yet provided them, the minister is still bound under proposed section 60I to directly seek and consider the advice of the Tasmanian Planning Commission in relation to the eligibility of a specific proposal to be a major project. In that intervening period, whilst there will not be generic determination guidelines to guide the application of the eligibility criteria, there will be specific advice from the same source and others that the minister will use to guide his or her decision as to the eligibility of a project.
On that basis we will not support the proposed amendment to insert that effectively a declaration can only be made based on the determination guidelines being in force. I believe I can provide assurance that advice specific to the eligibility of that specific project will be provided from the same source as would be providing that generic advice in the determination guidelines, so we do not support the amendment.
Dr WOODRUFF - That is very concerning and gives voice to the concerns that people in the community have raised about this issue. What is the point in going through the effort or possibly the charade of having the Planning Commission develop general project determination guidelines if there is a period of at least six months after this bill comes into force where they will not be accounted for?
Mr Jaensch - No, at most.
Dr WOODRUFF - The commission is not likely to get started on it the second the upper House pass this, if indeed that is what happens.
Mr Jaensch - You said 'at least'.
Dr WOODRUFF - I know, but by the time the commission gets established to do the work it could take them six months but it could well be longer than six months. It could well be nine months. Who knows how long it will take for the commission to undertake the process?
Mr Jaensch - No, they only have six months.
Dr WOODRUFF - From the time the bill is proclaimed?
Mr JAENSCH - Yes.
Dr WOODRUFF - That still gives six months. We have referred repeatedly throughout debate on this bill to a number of projects which the community is deeply concerned are ready and waiting in the blocks to go ahead and be declared major projects. Because you have said that you will not wait until the determination guidelines are in force that means all that work and oversight of the commission is for nought for the projects that might be waiting to be declared in the next six months.
A Cambria Green could be declared in the next six months without you having to have any reference to the determination guidelines of the commission. A cable car could be determined. A skyscraper could be determined. Westbury prison could be put into this category. There are so many other things, including Rosny Hill, which could fall over in the appeals tribunal and come into the category.
This means that all the good work of the commission to provide some guidance and constraint, some sense of proper planning processes, will not be included in the decision the minister makes about whether to declare a major project. It is a fundamental problem in the bill and, as many in the community have suspected, it gives a space for the Government to do whatever it wants in declaring major projects.
Mr JAENSCH - I reiterate that under proposed section 60I(1), which we amended a little while ago to add new paragraphs (h) and (g), it identifies that the minister must notify and take advice from the Tasmanian Planning Commission. In this case the advice is around whether this should be declared a major project. Therefore, the Tasmanian Planning Commission is providing specific advice to the minister on the suitability of a proposal to be declared a major project, which means we are not going without the high-level expert planning advice of the TPC. You are getting it as specific advice on a project, which is a safeguard. You are not relying on generic advice regarding applications of the criteria.
I believe the concern you raised is not well founded and the amendment is not supported.
Proposed section 60Q -
Contents of declaration of major project
Dr WOODRUFF - Madam Chair, I move -
That clause 60Q be amended by omitting subclauses (3), (5), (6) and (7).
Proposed section 60Q(3) allows the minister to require persons with certain skills to be on the panel. This is a fundamental interference from the minister in the make-up of the panel, which goes to the heart of why those more than 1500 people who made submissions are so concerned about this bill. They are concerned about the role of the minister in stacking the panel and putting in people who are particularly favourable to that development rather than having an impartial, independent scrutiny of the project on its planning merits.
Proposed section 60Q(3) says -
The Minister, in a declaration of a major project, may include a statement -
(a) specifying the particular qualifications or experience that the Minister considers ought to be possessed by at least one member of the Panel in relation to the major project; and
(b) requiring the Commission to, under section 60W(4), appoint to be a member of the Panel at least one person who possesses such qualifications or experience.
You tell me, minister, how that is not ministerial influence on the make-up of the panel? You tell me how it is that you continue to claim, falsely, that the commission will be left to its own devices to make its expert decision far from the reach of government?
This is an opportunity to stack the panel. It stinks. The commission should be left to make its own determination about who the people with appropriate expertise are on the panel.
The other proposed subsections to be removed - (5), (6) and (7) - appear to allow the minister to make an adjacent council the planning authority for the purposes of the declaration. I would be interested to hear what Ms Dow has to say about this.
It would, for example, see a council such as Glenorchy become the planning authority rather than a council such as Hobart City Council for something like the cable car. Please disavow us if that is not the case.
Mr Jaensch - Be disavowed. It is not the case.
Dr WOODRUFF - I do not see where you can point to that it does not do that. The fundamental issue we have with proposed subsection (3) is that it gives the minister the opportunity to have a say about who should be on the panel. That is just wrong.
There is nothing independent about that. It is open to the potential for corruption, or at least corrupted influence. We certainly would not want to have that on a major project proposal consideration, would we?
Mr JAENSCH - Mr Deputy Chairman, two important matters: first, under proposed section 60Q(3)(a) and (b), the minister can identify or specify a set of skills that should be represented on the panel, not the person. The most important thing is that the expert panel that is reviewing is a skills-based panel.
Dr Woodruff - Not if those skills are being picked by the minister with every potential for having -
Mr DEPUTY CHAIR - Order, please, Dr Woodruff.
Mr JAENSCH - I hear there is concern somehow a minister will find a way of picking a friend of theirs who will do their bidding, who happens to be the only person with a set of skills. Therefore they are bound to end up on there and therefore the minister has stacked the committee. That is not the case. The bill provides for the minister to specify a skill set and that this skill set will be represented on the committee, not a nomination of who should be appointed. It could well be that that skill set requirement can be satisfied by someone who is already likely to be on there by virtue of being an existing member or delegate of the commission.
The importance of this is that the minister can ensure and assure anyone asking that the panel includes people with skills relevant to the proposal, not just generically land use planning or related matters.
The next issue raised is in regard to proposed subsections (5), (6) and (7) of proposed subsection 60Q. The disallowing I referred to, Dr woodruff, is found in the middle line of proposed subsection (5). Subsections (5), (6) and (7) refer to where there may be an area of land, all or part of which is not within any municipal area so that there is not a statutory local authority under which jurisdiction it falls. The problem with this is that if you end up with planning decisions and planning rules made about that piece of land, there needs to be a planning authority to police them.
Dr Woodruff - Can you give me an example?
Mr JAENSCH - Yes. As Mr Ferguson knows, in the footprint of the development of the propose Bridgewater bridge there is a piece of land under the water in the middle of the river that is not in any municipality but is part of the area. The planning decisions made about that development need to be attached to a planning authority and therefore the prevision. That is an example.
Dr Woodruff - I thought the Tasmanian Planning Commission fixed that by making a division line through all waterbodies between municipalities in Tasmania. I see Mr Risby shaking his head.
Mr JAENSCH - I do not know. This is an artefact of the system because it is an orphaned little piece of land. If someone knew about it, they would plant a flag on it and declare it to be a principality of some kind. It happens it Western Australia all the time. It needs to be someone's responsibility so planning decisions and laws can be applied to it. On that basis, this is in here so it can be, for the purposes of this bill, adhered to a neighbouring municipality in the same regional area, adjacent to that piece of land. It is the most obvious local planning authority to take responsibility for planning purposes for that parcel of land, that is what (5), (6) and (7) address. They are quite essential because you occasionally get these orphaned pieces of land which do not have a planning authority to sheet things back to. That is the explanation, that is why those clauses are there.
Subsection (3) we consider is important to ensure that in our independent expert panel, we are able to be assured that there are skills relevant to the particular project and we reserve the power to specify what those skills might be.
Accommodated within the membership of that group, not necessarily a person uniquely appointed for those skills and certainly not directing who that person might be. That is how the separation is maintained and the independence of the panel is assured. On that basis, we will not support the amendment.
Dr WOODRUFF - I take it from you that you are making clear for us that subsections (5), (6) and (7) or particularly (5) would not enable the minister to make an adjacent council of the planning authority for the purposes of a declaration. That is not possible? It seems theoretically possible within this for that to happen. So, are you putting it just on the record that that is not the intention of parts (5), (6) and (7)?
Since this is my only second speaking opportunity, we totally reject your reasons for why you have given the minister the ability to distort the independence of the Tasmanian Planning Commission in the instance of the choice of people who will sit on the panel. This is the independent planning authority in the state. You do not need to tell them who to choose to sit on a panel to make a decision and to make an assessment of a major project. It should not be up to you. These are intelligent, expert planners. Every day they conduct hearings about extremely complex matters of planning. Every day, for years, they have been responsible going through all the state interim planning schemes looking at all these issues.
It is demeaning their intelligence, ability, expertise and role to say that you, as minister, would need to tell them what skill set they should include on the panel. There is already ample opportunity within this bill for the commission to choose the experts they see fit. It is not appropriate for the minister to possibly so constrain the choice, to include a person who has a very limited expertise that might suit a particular project. It is entirely up to the panel and the commission in the decision of the panel to make that determination.
Mr JAENSCH - It brings me joy to hear how confident you are in the capabilities and the independence and the expertise of the independent Tasmanian Planning Commission, given a moment ago you were insisting that parliament had the rights to overturn their decisions.
Dr Woodruff - Parliament gets to have a say on all the things that matter in this state.
Mr JAENSCH - In relation to the matter in items (5), (6) and (7) and you are asking for my reassurance, the reassurance you are seeking is that (5) speaks specifically about an area of land all or part of which may not be within any municipal area and the assigning of an adjacent municipal area to be the municipality for the purpose of this. Subsections (6) and (7) directly reference (5).
Dr Woodruff - Sure. If that is the case, I am happy for you to amend this amendment to remove (5), (6) and (7) and we will stay with omitting subsection (3).
Mr JAENSCH - No, I think it is easier just to not agree to the whole lot. Thanks.
Second amendment -
Dr WOODRUFF - I move -
That proposed new section 60R be amended that will omit paragraph (i) from subsection (1) and insert the following new paragraphs -
(i) if the land on which the project is or was to be situated is situated in Wellington Park, the Wellington Park Management Trust;
(j) any other persons or class of persons the minister considers likely to be directly impacted by the proposal; and
(k) any other person or class of persons that are prescribed.
We have been here before, but it is important in the case of the notification of the declaration of a major project that the minister should again keep the people or classes of people who ought to be informed notified within seven days after the declaration of a major project is made. This amendment adds paragraphs (j) and (k), which are a standard addition to bills, so the minister can make decisions on the basis of the particularities of a project and expand the list of persons who must be notified as is required by that particular proposal. It also includes any other person or class of persons that are prescribed and, as I discussed in a previous amendment, that would include any other bodies within regulations that need to be informed.
Amendment to amendment -
Mr JAENSCH - I move -
An amendment to the amendment consistent with the previous amendment we amended so that the effect of the proposed amendment would be -
Section 60R in clause 12 is amended by omitting paragraph (i) from subsection (1) and inserting the following paragraphs -
(i) if the land on which the project is or was to be situated is situated in Wellington Park, the Welling Park Management Trust; and
(j) any other persons or class of persons that are prescribed.
I have written that as previous and I propose that as an amendment to the amendment.
Dr WOODRUFF - Thank you, minister. We are happy to accept that. It does not go far enough but it strikes a fair balance.
Amendment to amendment agreed to.
Amendment, as amended, agreed to.
Third Amendment -
Dr WOODRUFF - Proposed section 60T relates to the effect on project-associated acts and relevant regulators of the declaration of a major project. I move -
That section 60T be amended by omitting subsection (1) and inserting instead the following subsection -
(1) If a declaration of a major project is made on a day an application under a project-associated act for a project-related permit in relation to land to which the projects relates that has been made by or on behalf of the proponent but that has not been determined under the act, is taken to have been withdrawn under that act on that day.
The first thing I want to say about this amendment that this goes a little bit to what the Tasmanian Planning Commission referred to in terms of the overly cumbersome language in this bill. I have not read many parts which are quite as difficult to comprehend as that. The purpose of our amendment is to retain the existing paragraph (a) in subsection (1) and to remove the existing paragraph (b). The reason for that is that paragraph (b) requires that a proponent be refunded half their fees if a project is declared to be a major project. In this instance we do not believe that is fair and equitable. We do not believe it is fair on councils or regulators who have acted as planning authorities in good faith and have taken an application for a development and gone some, or a large way - possibly the whole way - towards assessing it before it comes to a decision.
We do not believe it is fair on those bodies to have incurred the cost in good faith, and the proponent essentially gets to pick winners but to the financial detriment of councils or regulators that would have done some part of an assessment process before it was removed from the normal LUPAA planning processes and put into this LUPAA major projects planning process. It just does not seem fair for the proponent to be able to pick and choose and get half of their money back when those bodies would have acted in good faith in the work they have already done.
Mr JAENSCH - The good news here is that these paragraphs refer to project-associated pacts and project-related permits, not including the councils. These are about other regulators that the proposal may have been in assessment by, whose assessment process is frozen by project being proposed as a major project and declared, and then there being a part refund of any fees paid under those processes because they are going to go out and ultimately end up being assessed by those same regulators under those same processes again and be paying their fee there.
It is a way of closing off any assessment process that the project was under with relevant regulators, excluding the councils, to that point, recovering half the fee they have paid on the basis that they will end up with their proposal being assessed by that regulator at a later point and a fee will apply at that point. So you do not pay the full fee twice and you pay for only the bits you have used, because in between times that project may be found to have no reasonable prospect of proceeding. Its major project status may be revoked. It may otherwise not proceed, and then it has only paid for the bits of the process it has used and the regulator has only been paid for that part of the work they have done. The council process is not included in this, and that is defined by this being for applications under a project-associated act or a project-related permit.
On that basis I think the amendment is not required, because the problem you have identified with the council and someone being out of pocket for work is not there. It is not a problem to fix.
Dr WOODRUFF - Thank you, minister, for clarifying that. With your assurance that it does not apply to councils - and that makes sense from what you have said - can you be clear, then, that the argument is that because a proponent would have made a submission through the normal planning process to a regulator, if the proponent then decides to take that project and put it into the major projects process, those regulators will still be engaged in assessment activity for the same work?
It might have changed in scale somewhat, or it might not, but essentially they have started the work, and then they would come back to doing that work once the assessment criteria had been established by the Tasmanian Planning Commission panel.
So, you are saying it is not wasted work, and that they have been paid for the full cost to the regulator for doing the assessment process. The proponent will still have to pay the full planning application costs next time under a major projects process. That sounds entirely reasonable. We are happy to withdraw this amendment on that basis.
Dr WOODRUFF - Mr Deputy Speaker, I move -
This new section omits paragraph E from subsection 3 of 60U, and inserts a new paragraphs (e), (f) and (g).
I will read the amendment -
(e) Subject to subsection 4, if the panel has given the Minister a 'no reasonable prospect' notice under section 60ZI(1) in relation to the project; or
(f) If the Minister is satisfied that the declaration of a project to be a major project was made in contravention of this or any other act; or
(g) If the Minister was aware of compelling new information that, had the Minister been aware of it prior to issuing a declaration of the project to be a major project, the Minister would not have declared the project to be a major project.
Mr Deputy Speaker, paragraph (e) remains the same, and we have added in paragraphs (f) and (g) as extra criteria, which can be used for the revocation of a major project declaration. It broadens out the reasons by which a minister could revoke a project, and it includes whether new information comes to light that is compelling - not just any new information but compelling new information - and it requires that the major project cannot be made if it is in contravention of this or any other act.
Paragraph (g) also says that the minister must not have been aware of the compelling new information prior to issuing a declaration of the project to be a major project. The purpose of this is that it may take some period of time for a major project to go through an approval process, an assessment process, and during that time new information could come to light - in fact through the assessment process itself. We think it is appropriate that the minister has the opportunity to revoke the major project application on the basis of new and compelling information.
We are also clarifying that the declaration of the project must also be consistent with, and not in contravention of, any other act.
Mr JAENSCH - I understand what you are putting here. I apologise that I had my back to you for a little while. I was just getting some advice.
We are satisfied that the matters that you raise are adequately dealt with through the sections relating to the 'no reasonable prospect' test. The information which is to be provided to the minister from the various regulators who know their acts, and their areas of the assessment and the regulations most intimately - the role of that process is to flush out matters that may affect the suitability of the project to progress.
While I think the suggestions that are made here may aim to provide assurance of that, my advice has been that proposed section 60ZI is adequate to ensure that the relevant information is available to the minister from the relevant regulators for those decisions - so we do not support the amendment.
Dr WOODRUFF - Mr Deputy Speaker, I move -
That the amendment after proposed new section 60V, to insert a new section, to be numbered as appropriate -
'Independence of the Panel
(1) A Development Assessment Panel established under section 60V is not subject to the direction or control of the Minister in respect of the performance or exercise of its functions or powers.
(2) A person must not obstruct, or hinder, a Development Assessment Panel from performing a function, or exercising a power, under this Division.
Penalty: Fine not exceeding 20 penalty units and, in the case of a continuing offence, a further fine not exceeding 2 penalty units for each day during which the offence continues. [OK]
Mr Deputy Speaker, this really puts the rubber on the road in terms of assurances from the minister that there will be complete independence, and there will be no possibility for direction or control by the minister in respect of the performance and the exercise of the functions of the development assessment panel. The minister has stated a number of times that the development assessment panel will not be influenced by the minister, and will not be directed by the minister. This is a very important amendment that is needed to give confidence to the statements that the minister has made because it is hard to see on the basis of some of the other sections in (12), that could not happen.
It would be reassuring to have this statement of the independence of the panel. It is also important to have a penalty for such an important decision-making body if there has been any obstruction or hindering of its independence and functions under the responsibilities that they have been given in this division.
Mr JAENSCH - My advice is that the intent of this amendment is already taken care of under section 7(2) of the Tasmanian Planning Commission Act, that a minister may not give a direction to the commission in relation to the outcome of the exercise of the power or the performance of a function specified in Schedule 3(a).
Schedule 3(a), Provisions in respect of which delegation and directions are restricted, covers a range of assessment processes including under parts 2, 3, 3(a), 3(b) and 4 of the Land Use Planning and Approvals Act 1993. Further, the advice I have been given is that control is best left provided in the act, covering the TPC rather than in this one, referring back to it. The Tasmanian Planning Commission Act, section 7, provides for that protection from ministerial direction in relation to the exercise of a power or the performance of a function under LUPAA.
On that basis, we believe the amendment is not required.
Dr WOODRUFF - We are aware of the Tasmanian Planning Commission Act and its requirements about the independence of the Planning Commission and the fact that it should not be directed and should remain independent of ministerial direction. However, the reason we proposed this amendment is because we had an outstanding question and, if I could get some concrete validation, I would consider withdrawing it.
That the Development Assessment Panel would sit firmly and squarely under that Tasmanian Planning Commission Act, and it would be all about independence which is enshrined in the Tasmanian Planning Commission Act. This would apply to the Development Assessment Panel? It would not be seen to occupy some other space outside of that act and the cover that act provides?
Mr JAENSCH - Mr Chair, proposed section 60X section (6) of the bill says that -
Part 3 of the Tasmanian Planning Commission Act 1997 applies to, and in relation to, a Panel as if a reference in that Part to the Commission were a reference to the Panel.
Dr Woodruff - Okay. I am happy to withdraw this amendment.
Third amendment -
Ms DOW - I move -
Section 60W be amended as follows -
New subsection (1)(a) -
"Two members of the Commission"
One to be the chairperson of the panel, and -
New subsection 1(b) -
"1 person who is not a member of the Commission and who, in the opinion of the Commission, has qualifications and experience that are relevant to the assessment of the major project."
I move this amendment from the point of view that we believe that, first, the chair of the panel should be a member of the TPC and two dedicated members of the TPC need to be on the Development Assessment Panel. That will assist with more independence for that panel, acknowledging that is also balanced by the other member being appointed by the TPC with the relevant skills deemed to be required for the assessment of that project.
A lot of the concern in the community is about the independence of the process used to assess major projects. We believe the role of the Development Assessment Panel is absolutely critical and that including two members, with one of those being the chair from the independent TPC, will make for a more robust assessment process.
Mr JAENSCH - I have advice on a couple of levels with this one.
First, there is an apparent error with your drafting. In the first part of the amendment, new subsection 1(a), you suggest adding two members of the commission. Amendment 1(a) is solely about there being one chair so, as it reads directly -
Ms Dow - My amendment is to have one chair, yes.
Mr JAENSCH - You may need to redraft that.
There are only six commissioners able to sit on panels. Of the eight commissioners, only six are able to sit on panels by virtue of the other roles they might hold. Six of the eight are all that are available to be assigned to sit on panels. Should there be, for example, two more or more major projects under assessment at any one time you might start running out of commissioners and let alone the other roles that they may have in other parts of the duties of the Planning Commission. So the suggestion of two commissioners may create a resourcing matter for the commission in how it populates these panels and other panels that are part of the work it does.
The panels appointed for statutory assessments undertaken by the commission may or may not include commissioners and can be undertaken by delegates of the commission who are appointed to a panel based on their relevant experience and expertise, just as occurs in a major projects bill. The structure at the moment ensures that there is a member of the commission, a commissioner, who is also the chairman of the panel.
Ms Dow - That is not compulsory. The do not have to be.
Mr JAENSCH - No, I am reading the bill as it is. The provision is for a member of the commission, or any other person nominated by the commission is your point, who is to be the chairperson of the panel and two who are not members of the commission, but in the opinion of the commission have the qualifications and the experience.
What is the re-worded first part of your amendment?
Ms DOW - It is -
(1)(a) a member of the Commission who is to be the chairperson of the panel;
(b) a member of the Commission; and
(c) a person who is not a member of the Commission and who, in the opinion of the Commission, has qualifications and experience that are relevant to the assessment of the major project.
Mr DEPUTY CHAIR - Ms Dow, you need to submit that in writing.
Dr WOODRUFF - To assist Labor, we prepared an amendment to their amendment on this issue, but if you are going to draft your own, we will leave it to you.
Fourth amendment -
Ms DOW - Mr Deputy Chair, I move -
That clause 60W be amended by inserting a new subclause 12 -
(1)(a) a member of the Commission who is to be the chairperson of the panel;
(b) a member of the Commission; and
(c) a person who is not a member of the Commission and who, in the opinion of the Commission, has qualifications and experience that are relevant to the assessment of the major project.
Mr DEPUTY CHAIR - The original amendment has been withdrawn and been replaced by the amendment Ms Dow has just read in.
Dr WOODRUFF - We support paragraph (a) of the new amendment because we picked up that the original Labor amendment would have meant there would not have been a chairperson on the panel. That is an important and sensible change.
Paragraph (b) is that the person is a member of the commission. Paragraph (c) makes sense of 1(b). We are happy to support this amendment.
Mr JAENSCH - The principle raised with me is that we would need to preserve the capacity of a member of the commission to delegate. That is the way that the commission works and it populates panels et cetera. That maintains the flexibility and capacity in the ability for them to cover the bases.
I propose an amendment to the amendment to the amendment -
Mr DEPUTY CHAIR - It is an amendment to the newly submitted amendment.
Amendment to fourth amendment -
Mr JAENSCH - which would have the effect of having two members of the commission involved in this but that their roles may be delegated by them so that the new amendment reads as follows -
(a) A member of the Commission or another person nominated by the Commission who is to be the chairperson of the panel;
(b) A member of the Commission or another person nominated by the Commission; and
(c) A person who is not a member of the Commission and who, in the opinion of the Commission, has qualifications and experience that are relevant to the assessment of the project.
That is 'has' not 'have' because that was previously two persons.
That gives the assurance of two members of the commission who are the substantive members and that there are other people able to work under their delegation and authority.
Ms Dow - To be clear, the TPC ones would be the substantive positions.
Mr JAENSCH - They are my words, but if the two specified members are members of the commission or another person nominated by the commission and the third person who is not a member of the commission, but in the opinion of the commission has relevant qualifications and experience, it increases the commission's presence in the panel but maintains that important functional ability for them to delegate.
Ms DOW - Thank you, minister. We will be supporting your amendment to the amendment because to all intents and purposes it achieves what our intention was, and that is to have the two commissioners involved in the development of the assessment panel. It is our hope that will address some of the issues and perceptions in the community that the development assessment panel process would not be a truly independent process. We think it is absolutely critical that it is, and via those changes that will enable that to be addressed.
We do not have access to OPC and it is very difficult to draft amendments, so I have learnt a lot tonight, but it is very important we have access to that additional support. I know some previous commitments have been made around that. All these amendments have been based on feedback to us from the community, which we wanted to bring forward to this debate tonight and have debated, which I think we have done fairly fulsomely on the Floor of the House. That was our intention and each amendment was brought here in good faith.
Amendment to the amendment agreed to.
Amendment, as amended, agreed to.
Fifth amendment -
Dr WOODRUFF - We have another amendment to proposed section 60W. I move -
That proposed new section 60W be amended by -
(a) omitting from paragraph (a) in subsection (3) the words 'commerce or industry';
(b) omitting from paragraph (b) in subsection (3) the word 'infrastructure' and instead inserting 'infrastructure; or';
(c) inserting after paragraph (b) in subsection (3), a new paragraph (c) that would read -
(c) qualifications or experience in environmental science, environmental management, ecology, environmental and public health, Aboriginal cultural heritage or historic heritage.
(d) inserting after subsection (3) the following new subsection -
(a) one or more the persons appointed to the panel by the commission under subsection (1)(b) must be a person with the qualifications or experience described in (3)(c).
(e) omitting subsection (5) and inserting the following subsection to read -
(b) the commission may appoint a person under subsection (4) to be a member of the panel in relation to a major project if:
(a) the commission is in opinion that the scales specialist nature or complexity of the major project make it desirable to appoint to be a member of the panel a person of particular qualification and experience that the commission thinks appropriate to assist in the assessment of the project; and
(b) the commission is of the opinion that the person has those qualifications or that experience.
I will just walk the minister through what we are intending to do here. In the first part of this we are omitting the words 'commerce or industry'. This is in regard to the choice of people with qualifications and experience for sitting on the panel. We do not believe it is necessary to have a person with qualifications or experience in commerce or industry. Those are generic areas and are not specific to the assessment skills required for a planning application. It is not the case that the Planning Commission requires people who are their delegates to have experience in commerce or industry. These matters are secondary to the issues that ought to be in front of the Planning Commission panel when it is making an assessment.
That assessment should be based around planning law and based around regulators. It is not based around about the commercial viability of a project or the import for an industry area. Those things should all be raised in the assessment process as matters to the panel in submissions and hearings. Given there is a small number of people on the panel, we think to have that specifically could distort the skill set of expertise required given the other areas that must be covered.
Paragraph (a) of our amendment omits that and paragraph (b) is just a minor change so there is a possibility of adding in paragraphs (c), (d) and (e).
Paragraph (c) adds a new level of qualification and skills which the minister can choose from in terms of members who can be chosen for a panel and it adds those requirements for experience in environmental science, environmental management, ecology, public health, Aboriginal cultural heritage and historic heritage. We believe there was strong support to have that breadth of skills on the panel and it is really important. The projects being looked at must have people who understand and on a particular project where that is relevant, the commission must be able to make a determination to include that skill set in addition to land use planning, urban planning and regional development.
The numbers will need to be determined by the drafters but our proposed subsection says one or more of the people appointed on the panel by the commission under subsection (1)(b)
must be a person with the qualifications or experience described in (3)(c), this is just to make it clear that the commission can appoint people onto the panel with the expertise that I have just listed.
The fifth change, subsection (e) that we are proposing the amendment for:
Remove subsection (5)(b).
Part (b) of subsection (5) says that the commission must appoint a person under subsection (4) to be a member of the panel in relation to a major project if the commission is required to do so by a statement included under proposed section 60Q(3)(a) in the declaration of a major project. This enables the minister to direct the commission to direct the panel about the appointment of the people who should sit on there.
We do not think it is appropriate for the minister to be involved in this situation. On the one hand you argued before, we disagreed, but you argued that you would be putting forward your advice to the panel about who should be included in the appointment of a panel. In this later section, we see that really what you are intending to do and what you are doing is intervening, directing the panel. This is not a 'may' at the start of this subsection. This part is a 'must'.
You are directing the commission to appoint a person who has experience or expertise under an area that you have determined is necessary for the assessment of a panel. This flies completely contrary to everything that you said about not having ministerial influence. I feel as though it is wading through concrete going through this bill. It is torturous on every level.
At every level I keep getting told people who have made submissions in good faith keep getting told that they are wrong and they are overly concerned about things and that there are not opportunities for the minister to intervene.
Tonight, we have pointed out numbers of times and provided amendments numbers of times where the minister gets to influence the appointment of the panel and the decision-making processes of the panel. This is another one and we think that it should be withdrawn.
Mr JAENSCH - That last matter first. We have had discussions already this evening on the purpose and the intent of the minister specifying skills. The broader issue in this amendment, first is in regard to (3)(a) and the skills listed there, qualifications or experience in land use planning, urban and regional development, commerce or industry. The reflection there is that these are for the members who will be part of the planning part of the assessment process.
There are other aspects of assessment of a project which are sent to relevant regulators who have expertise in Aboriginal heritage, threatened species management, cultural heritage and a range of other matters. The panel members, particularly those with experience and skills relevant to their role as the assessors of the project under LUPAA with its focus on land use planning matters, including economic development specifically in the objectives of LUPAA. That is why that mix of skills is specified upfront and/or (b) practical knowledge of, or experience in, the provision of building or other infrastructures notes that major projects is only for projects which involve building things. It is about land and its use but also development on that land -
Dr Woodruff - All planning applications are fundamentally about building things. The Planning Commission sits on all matters to do with building things.
Mr JAENSCH - Correct. I was just being explicit there. It is to account for why infrastructure might be a skill set which is included in the proposed make up.
The reference in the amendment to a range of other qualifications and experience covering environmental science, management, ecology, Aboriginal cultural heritage, historic heritage, et cetera, those skills are in the relevant regulators that are part of setting the criteria for assessment and then conducting those assessments and providing advice to the panel on that basis. It would not make sense to duplicate those skill sets on the panel and in the relevant regulators.
Similarly, because every project will require assessment under a different combination of acts and regulations, if there was a requirement for the panel to have members with that raft of skills some of those would be redundant for some projects. There needs to be this ability for a core panel of land use planning, LUPAA-related skills, to identify with the assistance of relevant regulators what else needs to apply to a particular project because of its nature and then rely on the skills of those groups to provide the adequate assessment in those cases.
I do not think there is another matter that I needed to raise there. I am happy with 60W as it is, noting the previous amendments, but in terms of that skill profile. I do not support the amendment.
Dr WOODRUFF - Did the minister reply to our fifth part of that amendment in relation to the deletion of (5)(b) which was about the appointment of a person unless they had been directed by a minister, a particular statement of a minister, about how the panel should be constituted?
Mr Jaensch - I referenced that first up, yes.
Dr WOODRUFF - We do not agree with your argument. In fact, you have provided the argument unwittingly for why we have moved this amendment in the first place.
Yes, you are quite right, most major projects would need to go through a series of regulators looking at the acts that this bill references including the Nature Conservation Act and threatened species, Aboriginal heritage and built heritage and the Environment Management Pollution Control Authority. I am sure I have forgotten one or two others but there is a bunch of them and they all relate to the skills, to the assessment of natural, cultural, built and Aboriginal values which we are referencing in that list.
The point is, the assessments will be done by those regulators and, if you remember, the manner in which their assessment will be conducted is governed by direction from the panel.
Mr JAENSCH - No, they make their assessments as they would under their own act, absolutely.
Dr WOODRUFF - That is correct, but the panel provides the assessment criteria.
Mr Jaensch - No.
Dr WOODRUFF - Since I do not have another speaking opportunity, I might stand on my feet. Perhaps the minister would like to respond from his chair.
Mr Jaensch - The panel assembles the assessment criteria from the advice provided by the relevant regulators. The assessment criteria is then a book of requirements that the proponent responds to and then that response is sent to each of the regulators and they assess their part under their own act.
Dr WOODRUFF - Right. You and I have mentioned the regulators. The assessment panel will have to make a decision about the assessment provided by the regulators. That requires expertise. There is no need for commercial or industry-specific expertise in making those assessments. What is required is the ability for the commission to identify the skill set we pointed to in our amendment as an option. We are not prescribing that those skills be picked up and chosen by the commission, but they are not given in the skill set that can be sampled from, and that is a problem.
The point is that this is heavily weighted towards commerce and industry and the provision of building infrastructure. Many other very important values and matters must be protected and attended to by the panel for a major project. This is too weighted in one area and is missing the opportunity for the panel to identify specifically people with that skill set.
We are disappointed you have that view, minister, and we are also disappointed that you continue to keep parts of this bill that provide you as minister with the opportunity to intervene in the process and have an influence over the commission's activities in this regard and the constitution of the panel.
Mr DEPUTY CHAIR - Dr Woodruff, before you go on, whoever has been in the Chair has been pretty lenient in terms of allowing the backwards and forwards while we have been in Committee, but substantive contributions need to be made on your feet rather the situation we had with that last amendment, just for the ease of Hansard and to be able to control what is going on. Dr Woodruff, the call is yours.
Dr WOODRUFF - Proposed new section 60X relates to the powers, procedures and liabilities of the panel. I move -
That section 60X be amended by -
inserting after subsection (3) a new subsection to be numbered as drafting requires and that new section will read as follows -
The procedures approved by the commission under subsection (3) must be consistent with Part 3 of the Tasmanian Planning Commission Act 1997.
The purpose of this amendment is to ensure that the procedural guidelines that are issued by the Commission enhance rather than detract from the public's opportunity to participate in the assessment process, by requiring them to be consistent with part 3, and including the obligation to comply with natural justice.
The Tasmanian Planning Commission sets a high bar when it comes to the processes during the conduct of its proceedings, processes of hearings, submissions, and notifications and consultation processes. These provide fairness in access to information, timeliness of information and natural justice to be provided to people who are participating in the matters before the Commission.
We want clarification through this amendment that the procedures of the Commission under part 3, would be consistent with part 3 of the Tasmanian Planning Commission Act 1997.
Mr JAENSCH - We have considered the amendment and the reason for it. We are satisfied at this stage that Part 6 in the same section, does the same job as what is proposed.
So 60X(6) reads -
Part 3 of the Tasmanian Planning Commission Act 1997 applies to, and in relation, to a panel as if a reference in that part to the Commission were a reference to that panel.
Dr Woodruff - Minister, can you confirm that that relates to the powers, procedures and liability that would govern the panel, not just the actions of the panel?
Mr JAENSCH - Everything it does, as I understand.
For thoroughness. Part 3 of the Tasmanian Planning Commission Act covers hearings, procedures of hearings, representation at hearings, written evidence and submission, documents to be made public, protection of members et cetera, protection from liability, power to obtain information and documents, allowances to persons giving evidence, et cetera, failure to comply with requirement, false or misleading evidence or information, obstruction or improper influence, misconduct, contempt.
Those are the procedures. It covers the procedures and procedural requirements as you mentioned.
Dr WOODRUFF - Thank you. I will withdraw that amendment.
Dr WOODRUFF - Mr Deputy Chair, I move -
That clause 60ZZM be amended by omitting subsection (4) and inserting a new subsection -
(4) The panel may only grant under subsection (1) a major project permit in relation to a major project if it is satisfied that -
(a) the assessment criteria in relation to the project have been satisfied; and
(b) the project would be consistent with furthering the objectives specified in schedule 1; and
(c) the project is consistent with relevant state policies; and
(d) the project is consistent with the TPPs; and
(e) the project is consistent with any regional land use strategies that applies to the land on which the project is to be situated; and
(f) the project avoids the potential for land use conflicts with use and development permissible under the planning scheme applying to the adjacent area; and
(g) the project is in the public interest; and
(h) if the project is in accordance with -
(i) if located on crown land any relevant management plan for reserve crown land under the National Parks and Reserves Management Act 2002; or
(ii) if located in Wellington Park the management for Wellington Park under the Wellington Park act 1993; and
(i) the relevant fee required under section 60ZZZB and any other fee required under any other act to be paid for the assessment of the project have been paid; and
(j) the panel has received a final advice under section 60 ZZF(1) from each participating regulator.
Subclauses (a) and (b) remain the same. Subclause (c) would now say the project is consistent with relevant state policies. Also, (c) inserts the words 'is consistent with' the TPPs instead of 'in contravention with' the TPPs. Similarly subclause (e) in relation to regional land use strategies the project would need to be 'consistent with' any regional land use strategies rather than 'not be inconsistent' with them.
This makes sure there is that consistency rather than 'not in contravention with', that is a different matter. It ties the granting of the major project permit very closely to the intention and the specifics within the state policies, the TPPs and the regional land use strategies. It is very clear that there cannot be any inconsistencies between that major project and those three policies or strategies.
There are two new parts, subclauses (f) and (g). Subclause (f) deals with the avoidance of land conflict. I am surprised that the Government has not paid closer attention to this matter. It is important. There is nothing in the conditions that the panel can grant a major project permit that means that the project has to avoid the potential for land use conflicts.
This is anomalous with the rest of the planning scheme. A major issue in a development application for councils acting as planning authorities is to consider the impact of the development on surrounding land and the potential for land use conflict.
This was raised for me when I was on the Huon Valley Council when dealing with fettering in regional areas, where extant activities that are operating lawfully and under the planning scheme are not be prevented from continuing. Classic ones in regional areas are agricultural noise - people coming in and building residences, or coming into places and wanting to set up something else, and they really do not like the sounds of tractors or big machinery. The same thing happens in inner city suburbs, where people are living in a suburban environment, and somebody wants to set up a very noisy business operating outside business hours. There has to be some way to manage that. It has to be considered in the decision-making process.
Our additional (f) means there has to be a capacity to look at the potential for land use conflicts that are already described within the planning scheme that would affect the surrounding areas.
The second thing we are adding to this proposed new subsection (4) is a new paragraph (g), which is that the project should be in the public interest. We think it is fundamentally essential that major projects must, because of their significant impact, scale and their complexity, also demonstrate they have the public interest at heart - not necessarily their principal reason for creating a development, but it must be in the public interest that the development is created. Let us face it, this bill enables a whole different process for the developer to go through, with much more opportunity for ministerial influence and all the other things we pointed out, so at least it ought to be able to demonstrate it is in the public interest.
Paragraph (h) is also that the project must ensure that where a major project is located on reserve crown land, or in Wellington Park, that the decision-making criteria required of the project is in accordance with the relevant management plan. This is critical - it is so critical. We must have confidence this will be adhered to, otherwise the management plans for these places may as well be torn up.
This major projects bill already tramples on the Tasmanian Planning Scheme. It already moves into local provision schedules. It already takes away the possibility of putting strict limits on building heights. It already removes the possibility of local provision schedules and the specificity within them being able to be cast iron.
All the work that has been done for such a long time with interim planning schemes and then moving into the Tasmanian Planning Scheme means nothing if the prohibitions and the local planning decisions made about areas cannot stick.
Mr JAENSCH - In response to the amendment, with the matters just raised, I do not have time to cover all the things you said that were wrong, but I want to come back to the amendment.
The first matters raised are in subsections (c), (d) and (e), and refer to the use of the term 'not be in contravention of'.
We discussed this earlier. It is a drafting preference of the Office of Parliamentary Counsel to use 'not be contravention of', rather than 'be consistent with'. They have their reasons for that. I am not going to argue the toss on those matters. We are assured it has the equivalent meaning, but it is more correct in a legal sense for it to be drafted in this way. That is a drafting style issue, to not be in contravention of state policy and not be in contravention of the Tasmanian Planning Policies - the TPPs.
The third matter, about the project 'being consistent with a regional land use strategy', or 'not inconsistent with' - the reason for it being 'not inconsistent with' is that it allows consideration of a matter on which a land use strategy is silent, so that something can be proposed which is not referenced in any way within a regional land use strategy. Maybe it was not considered or anticipated at the time of its creation, but is not necessarily inconsistent with another part of the content of the regional land use strategy.
The example we will use here is if the Southern Tasmania Regional Land Use Strategy were silent on the matter of light rail corridors. If we were to contemplate a major project proposal around the establishment of a light rail corridor, and our rule was that we must be consistent with the regional land use strategy, we would hit a bit of a bump.
Dr Woodruff - No, because that could be considered under a Major Infrastructure Development Approval.
Mr JAENSCH - However, a MIDA is extremely limited, and generally relates to power infrastructure and linear infrastructure. It only covers a couple of forms of approval, whereas major projects have far more scope to consider a wider range of things. That example is the reason for writing this as 'not inconsistent with', so it means it is not in contravention of the intent of the regional land use planning strategy, but may not have been anticipated in its creation.
Further on, paragraph (f) that was identified - the project avoids the potential for land use conflict, with use and development permissible - is dealt with in the preceding three clauses, consistency or not in contravention with state policies, TPPs and not inconsistent with the regional land use strategy. Those are all intended to provide that arrangement of land uses compatibilities, et cetera, so that you do not have conflict. That is what those plans and policies should aim to achieve.
Proposed paragraph (g) is a very subjective test - the project is 'in the public interest' - and we do not accept that.
Dr Woodruff - That is a pretty standard legal test.
Mr JAENSCH - It is a very global one.
Going then to H(1) and (2): in terms of crown land and the reference to management plans under the National Parks and Reserves Management Act and the management plan for Wellington Park under the Wellington Park Act, no project can proceed in contravention of either of those acts and their related management plans.
Dr Woodruff - Where does it say that?
Mr JAENSCH - They have their own gates and rules, which mean that a project that proceeds through the major projects bill cannot proceed unless it goes through the normal approvals processes under both of those acts in relevant cases, so under the National Parks and Reserves Management Act and under the Wellington Park Act.
Dr Woodruff - Minister, to be clear it says that, 'within those acts'? That the limits are within those acts?
Mr JAENSCH - More to the point, the approvals processes in the major projects act do not include those approvals and they have to be sought separately. So there is separation from those. I believe that with those explanations that accounts for why the wording is as it is and these extra inclusions are not required. They are redundant because those acts limit a project proceeding if not through their normal approval processes anyway.
On that basis we will not be supporting the amendment.
Ms DOW - Mr Deputy Chair, I wanted to move my amendment (4) and bring that forward in the bill, after discussion with the minister that it should be included in clause 12, new section 60ZZZI, Review of operation of division. My understanding is that there are a couple of parts of it that are not contemporary with the drafting of this bill. I would say that this was taken from the Projects of Regional Significance process and wanted it included in this process.
If you wanted to provide that overview of what you have in that amendment to have a look at before I move this one.
Mr JAENSCH - Mr Deputy Chair, we have considered the amendment seeking to apply a review of the act at five years in a similar fashion to what is currently in legislation under the Projects of Regional Significance process. We noted with the wording that Ms Dow had proposed that there were some inconsistencies with the other language and components of the major projects bill and are different from the PORS process. So, OPC has redrafted the proposed insertion and the Clerk might distribute those for inspection to ensure that they capture the intent.
We are advised that this is the equivalent of what was proposed but polished somewhat so that it is coherent with the related parts of the bill, including references to, say, the permit being a major project permit as opposed to a special permit, just for correctness in the reading of the document.
Mr DEPUTY CHAIR - We will just give the relevant parties a second to read that and then I will get you to move it, minister.
Mr Jaensch - I would be happy for Ms Dow to move it.
Mr DEPUTY CHAIR - To move that amendment?
Mr JAENSCH - If she was to adopt that as her wording for the amendment.
Ms DOW - Mr Deputy Chair, I move the amendment that has been brought forward to be more contemporary in the drafting of the bill that the minister has proposed and that is amendment to clause 12.
I move -
After proposed new section 60ZZZH, insert the following proposed new section -
60ZZZI. Review of Operation of Division
The minister, as soon as practicable after 1 January 2025, must appoint one or more persons to conduct a review of -
(a) whether the granting of any major project permits has been efficient and effective;
(b) the exercise of the power under section 60O;
(c) the effectiveness of the determination guidelines; and
(d) whether the extent to which the division provides an efficient and effective process for the approval of developments.
(2) a person may not be appointed to conduct the review for the purposes of subsection (1) unless in the opinion of the minister, the person possesses appropriate qualifications or experience to conduct a review.
(3) at least one of the persons appointed to conduct the review for the purposes of subsection (1), must be a person who is not a State Service employee or State Service officer, a person employed or engaged by the Crown in the State of Tasmania or the Commonwealth, or a person employed or engaged by a state owned company, a Tasmanian Government business, or another body established under an Act of the State.
(4) The person or persons who conduct the review for the purposes of subsection (1) must by -
(a) notice in a newspaper published in the State, invite all persons to make submissions in relation to the review by a date specified in the notice; and
(b) consider any submissions made before the date specified in the notice; and
(c) within six months after a person is appointed to conduct the review, provide the minister with a report in relation to the review.
(5) The minister must cause a copy of the report provided to the minister under subsection (4)(c) to be laid before each House of Parliament within five sitting days after the report is so provided to the minister.
The intent of us moving this amendment and the intent of the amendment was about the importance of having that review mechanism after the five-year period. That was an undertaking with the last legislation and there has not been the opportunity to do that.
Arguably, it was never used, but it still was an important negative and perhaps had that been applied and undertaken, there would have been consideration of some of those things which we have raised through the debate today, around the composition of the development assessment panel, and the right of appeal process. It would have provided the opportunity for a full examination of the legislation which this is replacing.
I acknowledge there has been a tremendous amount of work done to develop this new bill but for good proper public process and for parliamentary process, it is important that this review clause is included in the bill. I thank the minister for his advice and support for that.
Dr WOODRUFF - On the amendment, the Greens had already circulated an amendment that we were proposing to make which would have introduced a review of this decision, which was also in the new section 60ZZZI, so we definitely support the need for a review. We are also proposing a five-yearly review. We are happy with that time frame and we are happy with the fact that a review is to be undertaken.
Amendment to amendment -
I have a proposed amendment to the amendment, which I have already circulated in our existing circulated amendment for what would have been this new section. I move -
That proposed new section 60ZZZI be amended by inserting a new paragraph (e), which would read -
(e) The extent to which the public have the opportunity to effectively represent their views.
This is a really important addition and would be a sign that there would be support for a full investigation of the impact of the ability for people to engage in the process, to be consulted with and to be able to represent the range of views in the community. There has been so much community concern about this major projects bill, minister - you would know that yourself because you received over 1500 submissions and you would know that 98 per cent of them opposed this bill. It would be a sign of good faith and reassurance on some small part that a review would, among the four letters matters you have proposed, also include the extent to which the public has an opportunity to effectively represent its views.
The only other point I want to make, in addition to that amendment, was a question in relation to subsection (4)(a), which says -
Persons who conduct a review must, by notice in a newspaper published in the state, invite all persons to make submissions in relation to the review by a date specified in the notice.
Is that the best we can do in terms of informing people about such an important review - a date in five years? Sorry to be the person who might speak this possibility, but will there be newspapers circulating in this state then? What about also being published on the Government website? I think there are a few other matters we typically put into bills these days in terms of notification processes. Perhaps the minister could think of inserting about publishing on the Government website or other means that could be appropriate to let people know that a review is in train.
Mr DEPUTY CHAIR - Doctor Woodruff, you need to submit your amendment to the amendment to the Clerk.
Dr WOODRUFF - I submit that I have submitted that amendment. In fact, I will do it again for the Clerk.
Ms DOW - Minister, the previous clause which is in force makes direct reference to the review being independent. I know that as you work through this amendment that is the intent, but it is not clearly written in there that it is an independent review. It just says 'a review'. I am just wondering why that was not included because that was an important part of the previous one. It is a semantic thing, but it means a lot.
Mr Jaensch - Was it included in the amendment you gave out?
Ms DOW - No, it was not. It does not say 'independent review', it just says 'review'. I am just wondering why it doesn't say 'independent'.
Mr JAENSCH - On my way to the amendment to the amendment, I will recap.
In the wording of the amendment as put forward regarding how an operation of the division be conducted, there is reference that the minister must appoint one or more persons to conduct a review -
A person may not be appointed to conduct the review for the purposes of proposed section (1) unless, in the opinion of the minister, the person possesses appropriate qualifications …
At least one of the persons appointed to conduct the review for the purposes of the subsection must be a person who is not a State Service employee, State Service officer employed or engaged by the Crown, … of Tasmania and the Commonwealth, a person employed or engaged by a state-owned company, Tasmanian Government Business or other.
In my view, that is the provision of the independent element of the review, but I think it explains independence in the process.
In relation to the amendment to the amendment, my view is that we support the wording of the amendment, but would not support the amendment to the amendment.
Dr Woodruff - - Sorry, what was that?
Mr JAENSCH - I will not support your amendment to the amendment. I am comfortable with the matters as proposed in the amendment put forward by Ms Dow.
Amendment to the amendment negatived.
Ms HADDAD - I want to speak on the amendment moved by Ms Dow and drafted through the minister through OPC, and remark on the fact that we have actually seen something quite remarkable happen here tonight with that amendment- through the minister an opposition member's amendment has very gratefully been drafted through the Office of Parliamentary Counsel.
We are often criticised in this place for our amendments not being well drafted and being sloppy. I note that the minister has not said that about these amendments to my knowledge, although I have not been here for the whole debate tonight, but that has been something I have witnessed in the time I have spent so far in this Chamber. The Opposition is always coming to the Table with amendments we draft ourselves that we are meaningfully putting on the Table to try to make improvements to legislation, and it is at odds with the fact that the Government often criticises us for not providing enough scrutiny.
Drafting is a niche skill set; it is a fascinating skillset and I have enormous admiration for the amazing work done by the people who work in the Office of Parliamentary Counsel. Because this happened tonight, I did not want to miss the opportunity to remark on and thank the minister for facilitating that and to put in a plug for opposition access to the Office of Parliamentary Counsel because it would mean that the Committee stage of bills would be much more efficient and productive, and that drafting styles are in keeping with the Tasmanian drafting styles.
Amendment agreed to.
Ms DOW - Deputy Chair, I move
That the bill be amended by inserting a new clause 12A and the new clause amends the principle act's section 61 as follows -
At the beginning of section 61 at the principle act insert the following -
(1) In subsections (4)(a) and (5)(b) of this section, the words and phrases 'Panel', 'major project', 'major project declaration', 'major project permit', 'proponent', 'final assessment report' and 'relevant planning authority' have the same meaning as in Part 4 Division 2A.
(2) After section 61(4) of the Principal Act insert the following:
(4)(a) If the Panel refuses to grant a project that is the subject of a major project declaration under section 60M, a major project permit under section 60ZZM(1)(b), or grants a major project permit subject to the conditions, the proponent of the major project may appeal to the Appeal Tribunal against the decision within 14 days after the day on which the Panel gives the proponent the final assessment report in relation to the project under 60ZZQ(3).
(3) After section 61(5) of the Principal Act, insert the following:
(5)(a) If the Panel grants a project a major project permit under section 60ZZM(1)(a), then:
(a) a person who made a representation under 60ZZD(1); and
(b) a participating regulator - may appeal to the Appeals Tribunal against the grant of the permit within 14 days after the Panel gives notice to the person under section 60ZZQ(4).
(5B) For the avoidance of doubt an appeal may be commenced under subsection (5)(a) in relation to the conditions or restrictions attached to the major project permit.
I move this amendment tonight and I will be guided as to whether it has been drafted appropriately, or whether it is inserted at the correct place in the bill.
The premise of moving this tonight is really to demonstrate that we have listened to the community and their concerns about the right of appeal process not being part of this bill. Whilst I recognise that it was not part of the original Project of Regional Significance Bill we believe there is merit in looking at it as part of this process.
We have received hundreds of emails and correspondence, phone calls and the like about the fact that this is not part of this bill. Whether that is related to the fact that parts of the bill were not communicated as effectively to the community as they should have been remains to be seen. Nonetheless, this is a considerable concern. It would have been remiss of us not to put this forward as an amendment for debate in the parliament given the high level of community interest and concern about this particular appeals process not being made available to the community, particularly where there are concerns around a number of significant projects across the state.
Mr JAENSCH - The decision taken by the Government not to build in appeal rights to the Resource Management and Planning Appeals Tribunal is because the original decision comes from an expert panel. It would be rather unnecessary and incongruous to provide for a right of appeal against the decision of an expert planning body -
Ms O'Connor - So what? Honestly. Because they will make a perfection decision?
Mr DEPUTY CHAIR - Ms O'Connor, you will have a chance to make a contribution if you want to.
Mr JAENSCH - to a second expert planning body, such as RMPAT. I do not believe there is logic in the argument that appealing to a second expert panel will provide a better planning outcome than the decision of the first expert panel. The only logic in allowing an appeal to a second planning panel would be if one considered that the original planning panel was in some way of lesser status or even less skilled or competent than the second panel and that is certainly not the intention. Of course, the option of review by the Supreme Court under the Judicial Review Act will still be open to anyone with sufficient interest in the matter who believes a particular development assessment panel process to be flawed.
Those words were spoken in 2009 by David Llewellyn as minister for planning introducing PORS. The same principles apply and the same advice would have been given as to now. The Tasmanian Planning Commission is the pre-eminent planning body in the state. It determines matters that are more complex than the review of a DA against a planning scheme. This includes assessment against policies and regional land use strategies. Just like the Projects of Regional Significance process, the major projects bill does not provide for merit review of the panel's decision, merely judicial review. This recognises that the Tasmanian Planning Commission is the pre-eminent statutory planning authority.
In other assessment processes, where a panel appointed by the commission acts in accordance with the requirements of the Tasmanian Planning Commission act, those decisions whether in regard to a proposed planning scheme amendment or a combined DA and amendment under section 43A of LUPAA. What you are proposing is not only inconsistent with other assessment processes but would undermine and diminish the statutory authority and even the status of the commission and set a precedent for appeals against all of the commission's decisions.
While allowing for an appeal to RMPAT against a decision of the commission is not quite the same as allowing for a decision of the Supreme Court to be appealed to a local magistrate, the principle is similar. There are operational matters that it raises, for example would the panel of the TPC be defending its decision to another panel? Similarly constructed like a council has to defend its decisions to RMPAT for a normal DA appeal? Another consideration is that in purely practical terms, allowing for an appeal to RMPAT would add between six and 12 months to an assessment process for what would likely be the same result. That may encourage proponents to seek their approvals more through channels like the combined DA amendment application process section 43A of LUPAA as there is no appeal currently under that process either.
The other matter I would raise for completeness in this is to never forget that an appeal process, if instituted, is also available to the proponent. This is not a one-way appeal mechanism. It would be available to a proponent also to appeal an outcome of a decision on a proposal. With that, and I acknowledge the member raising this as a matter. It certainly featured strongly in the public discussions and the submissions that we received. To be fair, there was strong information put out, made available and explained in response to submissions and inquiries that we fielded throughout the consultation process of the reasons why, and the precedents for, the appeal process not being built in. We are dealing with quasi legal concepts here, these issues of precedent and the relativities of different parts of the planning system. So it is understandable that does not cut through quite as strongly as someone saying, you have no rights to go to the umpire on this. In fact they do. The umpire in this case is the Supreme Court but what is not true is to say that appeal rights have been lost or taken away because under the legislation that this replaces they were never there.
We believe that the great strength of the major projects process as for the Projects of Regional Significants process is you start off with the decision made by the authority that you would normally go to for an expert call on a planning decision. The quality of the decision-making and the rigour of the process is embedded from the beginning so we will not be supporting the amendment.
Ms O'CONNOR - It is a worry when a minister of the Crown feels he has to cite a former minister of the Crown who was in office at the point at which the quote was drawn from more than a decade ago. When you have to resort to quoting David Llewellyn in order to make your case, you are in trouble. I know that while Labor could not bring itself to do the right thing and vote against this legislation in whole, it has heard in part the concerns raised by members of the broad community about this legislation, including the lack of appeal rights.
It is interesting that the minister can say it was a strong theme that came through the consultation and submission process that people were concerned about the lack of appeal rights, and yet nothing was done to respond to those concerns. No adjustments were made to the legislation to account for the fact that the Government had gone out there and consulted, people had put submissions in in good faith, there was a strong theme of concern about the lack of appeal rights, and yet again the community's voice was completely ignored.
This is not the way you have trust in planning, this is not the way you empower communities to have a voice and a say in their place. To suggest it is somehow an appealing prospect to communities to have to appeal against a potential expert panel decision in the Supreme Court at huge cost is insulting and offensive because these communities are made up of people, none of whom are fabulously rich, certainly not like the developers and the corporations they will be coming up against as a result of this legislation.
I think the most damning confession the minister just made then is that the call from within the community through the submission process was that there needed to be appeal rights and yet the Government ignored them. It is utterly reduced to citing a former failed Labor minister for planning, David Llewellyn, in order to prop up its case and try to justify having no appeal rights to an expert panel's decision other than a costly judicial review through the supreme court. I think that tells us everything we need to know about where the balance lies with this Government and it is most certainly not with communities.
Clause 12, as amended, agreed to.
Clauses 13 to 47 agreed to.
Bill agreed to and taken through the remaining stages.
Question - That the bill be now read a third time -
Ms O'CONNOR (Clark - Leader of the Greens) - Madam Speaker, this House is about to pass legislation that does not have a social licence. We know that right across Tasmania, community organisations that are standing up for their place wanted to see this legislation rejected.
We have had community organisations that in good faith made submissions to the consultation process. More than 1700 submissions came into that process, and a very small percentage of them were in support of the major projects legislation. Yet those communities and those individuals who made submissions in opposition to this legislation or wanted to see it substantially improved have been dismissed.
Madam Speaker, I will just say this in closing: if the Labor Party had listened to communities from Cambria Green to Westbury, if they had listened to the countless people who came to see them to ask them to reject this legislation, it would have given comfort to those communities that they had been heard, and it would have sent a very strong signal to the upper House. It is because the Labor Party has supported this legislation that it will get through, undoubtedly, both Houses of the Tasmanian Parliament. Ultimately, the Labor Party can carry responsibility for this.
I want to pass on to those community organisations, those outstanding people who briefed many members of parliament, and got in touch with them, thank you. I am sorry the vote went this way. I am sorry you were disappointed in so many of your elected members.
Finally, Madam Speaker, I know we harp on about this, but at the end of the day, we are parliamentarians. We are in here to give effect to a set of values. If you feel strongly enough through a legislative debate to move amendments, and if those amendments you believe are important and they have been put to you by community organisations, you should have the courage to divide on them.
Perhaps one of the most dispiriting aspects of tonight's debate was to see the Labor Party, again, hand-wringing, putting forward amendments that were woefully drafted. I hear the chortles from the Labor benches - but you do not have to be in here for more than five minutes to know how badly your amendments were put together.
Madam Speaker, we had a situation in here tonight where so many amendments were put forward. Dr Woodruff's amendments, our amendments, were solid. Labor's were poorly drafted, and they did not even have the courage to divide on them.
When you come to this place as an elected representative, you have to stand by your
convictions and you have to have a set of values, otherwise will rightly ask, 'Why you are here?' We are a representative democracy and each of us is elected to represent our communities. I do not think Tasmanians are going to continue to cop hand-wringing from a Labor Opposition which tries to make the right noises out of one side of its face and then comes in here when it does not think people are watching and does not do the right thing and does not stand by a set of values. If you are not going to back the communities who came to see you, have the guts to tell them. If you are going to move amendments that you say you want to have moved to improve the bill, have the guts to divide on them. For heaven's sake people stand for something
Madam SPEAKER - The question is that the bill be read the third time -
Motion agreed; Bill read the third time.
Mr Ellis (Teller)
Dr Woodruff (Teller)