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Major Infrastructure Development Approvals (North West Transmission Upgrades Project) Order 2020

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Thursday, 25 June 2020

Tags: Renewable Energy, Planning, Local Government

Dr WOODRUFF (Franklin) - Madam Speaker, the bill we have before us is about bringing forward the Marinus Link.  It is understood to be a project to unlock renewable energy potential in Tasmania and to make that energy available across other parts of mainland Australia as a contribution towards bringing Australia's greenhouse gases into a safer place.   
We have to understand the context of this, which is that we are in a climate and extinction crisis.  This is a global emergency and reducing our carbon emissions comes from Australia using fewer fossil fuels.  The basis for any drive for renewable energy projects must be to look at reducing greenhouse gas emissions.  The first place we need to go to is fossil fuels, and the first decision we need to make as a country is to stop exporting all thermal coal by 2030.  That has been the position of the Greens for some time now and it is in line with the scientific evidence.  We also have to support coal workers and communities during that transition period, so these are huge issues for the country we are grappling with at the moment.   
The hypothetical Marinus Link could form part of an Australian energy grid and help to theoretically stabilise parts of the network.  What is apparent is that there are a huge number of hypotheticals at play here and one of the most substantial ones is the Liberal and Labor parties' policy position on energy at the federal level.  It is very clear that despite trying to sit on both sides of the fence the Labor Party at the federal level, judging by Anthony Albanese's comments at the National Press Club yesterday, is continuing to move more closely towards the Liberals in backing continued mining and exportation of fossil fuels.   
Where that leaves us as a country is in a very difficult place for forging ahead with renewable energy like we need to be doing and it puts question marks over the commitments at the federal level towards funding renewable energy projects.  Clearly the Liberal Party, in their choice of the head of a mining company to look at the COVID economic recovery for Australia, have made a choice to subsidise gas projects, coal and other fossil fuel projects.  We are in a very conflicted space and it is important to look at this bill within that context because we are here today on the basis that this is an urgent bill and have been given to understand that this must be rushed through.   
I want to speak about the COVID emergency in Tasmania and the extraordinary parliament that we have constructed as a response to that.  We are the only jurisdiction I am aware of in Australia that does not have a level of additional scrutiny over the constrained parliament we have.  Labor and the Greens have tried on numerous occasions to expand the level of scrutiny we have in our COVID-constrained parliament and have failed.  That means we have a parliament which has been sitting now for about three months under a COVID emergency arrangement and the agreement that was made by the Premier with the Labor Party, the Greens and the member for Clark, Ms Ogilvie, was that only legislation or orders that relate to the COVID emergency or an urgent response would be introduced into parliament during this period.   
We have an extraordinary suspension of parliamentary oversight.  It is a big step away from the normal democratic processes that parliament seeks to continue, hundreds of years of democratic processes that have stood us in good place.  It is out of step with other jurisdictions.  The Premier stood here in parliament three months ago or so, and gave us his personal guarantee that he would not abuse the trust that was given to him by other parties in this particular matter.  Only bills that were required for the COVID-19 emergency, only bills that were required for an urgent response, would be introduced into this place. 
We first heard yesterday about this bill being introduced into this place at 11.35 in the morning.  That was our first notice that this bill would be brought on for debate today.  Yes, it was tabled yesterday, but we assumed it would be attended to in the August sitting of parliament, 18 August or thereafter.  We just heard about it at 11.35 a.m.  Our staff member asked the minister's staff member, who advised that this would happen whether the order was related to the COVID-19 emergency and that person replied, 'not to his knowledge'.  Our staff member also asked whether it was in relation to the emergency, and not that he understood was the response.   
There was not even the pretence of a pretext that this was a COVID-related bill.  It is not being rushed through for COVID-19.  It is not required as part of the emergency.  It is, in fact, completely contradictory to the commitment that the Premier gave us that he would not try to push through stuff with the constrained timing that we have to consider bills. 
So, the Government's public statements and commitments to this House about reduced time frames for documents, for bills or for orders, was that there would be a reduction in time from two days to one day for bills to mature.  That was necessary because of the context of the emergency, to make sure that there could be fewer sitting days, fewer staff in the building for safety and physical distancing reasons, for safety and physical distancing in the Chamber, and on the basis that Government staff were busy doing all the things with the emergency.  This would be a reasonable reduction in oversight from parliament of bills that came before us.  We agreed to that and that was given to us on trust and we took it in good faith.   
We have the Leader of Government Business also saying to us to trust him.  He said that numbers of times in parliament, 'trust us, we are not going to do anything dodgy with the process.  We will not be shifty here.  We are all in this together'.  Well, we have trusted the Leader of Government Business and I know, because we asked at the briefing, that the Executive Council had this bill signed off on Monday.  It was gazetted.  Yes, the Gazette appeared on Wednesday, but a special gazette could have been issued for this matter.  But, let us not even go to a special gazette.  The Minister could have picked up the phone.  He could have given the opposition parties, the Labor, the Greens, Ms Ogilvie - we could have actually had a copy of this bill on Monday night, but Tuesday morning would have been fine.  That would have been two days. 
So, we heard about this yesterday at 11.35a.m.  We were given a briefing at 3.30 p.m.  I asked numerous questions in the briefing about particular matters to do with when councils knew things, aspects of the bill.  I was told at one point, all of this stuff that you need is in the bill pack.  I said I do not have the bill pack.  It was like, 'Oh, do you not have the bill pack?  It was sent to you two hours ago'.  And it was like, 'No, it was not sent to us'.  We went back and checked all the emails.  No bill pack arrived. 
The answers to the reasonable questions I asked were, 'Have a look in the bill pack'.  Well, I have not had time to look at it.  It did not arrive.  The bill pack arrived after we had requested it at 4.42 yesterday afternoon.  Here we are, less than 24 hours later and the bill pack had a 78-page document from TasNetworks.  It had all the correspondence from the councils.  It had the minister's statement.  That is a fair bit to get through and to consider it. 
Mr Ferguson, the Leader of Government Business, said this morning in parliament in response to something he was talking about, 'That is how people can talk to each other.  I rang him on the phone, I rang Robert Armstrong.  Just pick up the phone'.  I throw it back to the Leader of Government Business and to this minister - pick up the phone.  Do not do this rubbish to us and pretend we will not be affected and not want to uphold parliamentary standards and processes here.  This is not a COVID-related bill.  This is not how you treat the process of the House.  This is what happens when we trust you.  You abuse our trust.  There is no reason and what is the rush?  What is the difference between one day and two days?  What is the difference?   
It is ironic when you look at the bill and some of the time frames that are required under the MIDA act.  It is ironic that 28 days for councils to respond, a week here, different weeks there.  All of this stuff is like laws that are being attended to.  Meanwhile, the Government cannot even attend to the parliamentary process of two days' maturation for a bill.  You sort everything else out but you do not bother to sort out the parliamentary process and the democracy of this House.  That is not important to you.  The one thing you think you can control you cannot, because you do not own this place. 
I want to attend to some of the particular issues that came up for us in relation to this bill, other than the fact that it is unnecessary to rush it through in the first place.  These multibillion-dollar projects and things that take a decade to construct, or maybe five years, but there is a long design and development time and construction time lines.  I did not understand and I did not find the reasons that the minister gave, or that I heard in the briefings, plausible about the whole rush for this bill hinges on being able to do some ecological surveys in spring.  It is possible but we have not seen evidence of that.  We were given no evidence that that was required.  We would have to take it on good faith and I am not feeling like having a lot of faith, good faith, on this matter because of the way that you continue to treat the processes around planning with some disdain.  It is not just the instance here, it is writ large across major projects, the Tasmanian Planning Commission Review, a whole range of other areas, you seem to be very cavalier about the processes which are normal in government. 
This act was last used in 2004 and it has only been used twice ever.  It is not a common act.  It is obscure and requires time to look at the particularities of it.  Ultimately, normally if this was being done properly, we would have time to consult with stakeholders and we would have time to consider the details of the bill.  Clearly, we have not had time to consult with stakeholders.  As a member of parliament, as a person who takes legislation and my role seriously, I find that offensive when there is no reason.  It does not persuade me there is a reason to forgo having the sort of checks and balances that should be made of any bill, this one included. One of the issues in the minister's statement I want to look at now is the question of council agreement.  So that an order can be made under the MIDA, the minister has to comply with the number of conditions that are outlined in section 8.  These include receiving a report from the proponent with a comprehensive description of the project, which is section 8(1)(b), giving relevant councils notice of the minister's intention to make a recommendation and considering any recommendations made by those councils, section 8(1)(c).  The notice must include a copy of the report received by the minister from the proponent, the minister's reasons for proposing that the proponent be declared to be a major infrastructure project, and a draft order.  Also, there must be a decision that the declaration is in the public interest - section 8(1)(d). 
The minister's statement has his opinions in relation to the submissions that were received.  The minister notes the support from councils for the use of the Major Projects Infrastructure Development Approvals Act.  At that point, there were two options open to councils.  One is that they could choose to have that infrastructure development application assessed through a combined planned authority model.  The second option is it could go to the Tasmanian Planning Commission who will, under the act, act as the planning authority, in this instance. 
The Minister says:   
I note that the Meander Council prefers the Tasmanian Planning Commission to conduct the assessment. 

Then he goes on to say: 
I note that the other councils have also indicated that they do not object to the Tasmanian Planning Commission being directed to conduct the assessment. 
I do not think that is an accurate reflection of what I read in the councils' letters on this matter, and I would like to understand how you came to that interpretation by looking at what the Northern Midlands Council said. 
The Northern Midlands Council, in a letter dated 3 March, said: [TBC] I refer to the notice received from Minister Jaensch dated 27 February 2020 advising his intention to direct the Tasmanian Planning Commission to undertake the assessment of the north-west Tasmania transmission upgrade project.  The notice allows seven days for a response to be made.  Council is not meeting within the next seven days, therefore I am unable to express any concerns Council may have. 
When Council considered the minister's initial request, it advised its view the project should be assessed by a combined planning authority, not the Tasmanian Planning Commission. 
Council has expressed frustration at the timeframes for responses provided in this process, which has not allowed for reports to be presented to Council for consideration in time for the deadlines expressed by the minister to be met. I understand these timeframes may have been set by legislation, however it is requested these be reviewed to ensure Councils have fair opportunity to make comment regarding this process in the future.  

I do not read that letter as saying that this council does not object to the Tasmanian Planning Commission being directed to conduct the assessment.  That is not an interpretation which is valid, from that letter.  In fact, they made it very clear they wanted it to be assessed by a combined planning authority in their letters of 24 February and 3 March.

You also go on, in your ministerial statement, to say:  
I wrote a further letter to councils to express my views and to test if any council would be opposed to this course of action. 
Which was that the assessment be carried out by the Tasmanian Planning Commission 
You cannot actually test a statement when you do not give people meaningful options.  There was no testing; you effectively informed them that that is what you would be doing, and there is no test when a party does not have the power to say no, it is simply a power play.  Let us be honest about what is going on here.  You wrote to the councils a second time and you could have said, 'I have power under the act to make the decision and I made the decision to go with the Planning Commission'. 
A number of councils make this very point themselves in the second letter.  The Burnie City Council indicate that the assessment should be conducted by a combined planning authority and they did not change their position.  They say that the minister had set out his reasons to support appointing the Tasmanian Planning Commission to undertake the assessment of the project.  The council does not have grounds on which to challenge or object to the minister's reasons.  That is not the same thing as to agreeing to them.  In their letter they say again that the assessment should be conducted by a combined planning authority.  Waratah-Wynyard Council is also clear that they would prefer it to be undertaken by a combined planning authority. 
In the briefing yesterday I was led to understand that initially councils had mixed views and the majority would have preferred a combined planning authority but by the second ask they were in agreement that they would go with the Tasmanian Planning Commission.  That is actually not correct.  It is correct that in the first request one council did not respond, one council wanted to go with the Tasmanian Planning Commission and four councils wanted to go with a combined planning authority.  In the second request letter that you wrote one council did not respond, three councils wanted to go with a combined planning authority and three councils wanted to go with the Tasmanian Planning Commission.  It was split.  You should be upfront about this.  If you have the power to override the councils just say that, but do not pretend and be shifty.  If you are asking people to take things on trust then you have to be really clear, upfront and honest about what you are doing and not try to hide things from people.  The response from councils makes it clear that they do not like being treated like that either and it is fairly imperious.   
I want to talk about the other aspect of this development, which is that this order provides that the Tasmanian Planning Commission acts as the planning authority and in that situation it raises some potentially concerning issues about process.  The planning authority that deals with an application for a permit in relation to a major infrastructure project may determine that application 'in such manner as it thinks fit'.  That is the MIDA Act section 11(1)(b) .  This may entitle the planning authority, in other words the Tasmanian Planning Commission in that situation, to dispense with procedural entitlements that would normally apply under LUPAA.  Whether the Planning Commission chooses to do that or not is a matter for them but this act enables that to happen, so I think that is a matter of concern.  If these projects were being looked at by council by council, then each council would be required to look at it under the Land Use Planning and Approvals Act and they would not be able to dispense with normal processes.  Also, if it was looked at council by council then anything that was prohibited within LUPA would remain prohibited.  What this does is under the MIDA is it means that regardless of the terms of any relevant planning scheme or a special planning order the major infrastructure project is taken to be a discretionary use of development under the land.  In other words, if something is prohibited in a council planning scheme this provides that it becomes discretionary within the MIDA process.  When we asked a question in the briefing about this the reply was that it was not understood that there was anything within the separate planning schemes of the six councils that would be prohibited that would be affected by this particular that would become discretionary under the planning authority with the power of MIDA. 
I make the point that this should have been provided to us.  We should have had some written material about this.  The last time that this act was used the aspects of the planning scheme that were to be overridden and/or provided as discretionary, I understand a table and information about the exact ones were provided to members of parliament who were making decisions at the time.  If there is nothing then we needed to see that material.  We need to see the evidence that this aspect of the planning scheme if elements that are prohibited become discretionary under the planning authority, if that is the case then I would have liked to have seen that.  I think that is basic information.  It was not clear to me that we got a comprehensive answer and that the staff who provided the information to us in the briefing yesterday were confident of the answer that they were giving us.  That is a concern if you could address that. 
The ecological values that are at play with this project are large and substantial and they are outlined in the proponent's paper.  On page 42 and 43 it is clear that there are a large number of ecological values that will be threatened by the possible corridor and so we make the point that the communities are very concerned about their land, their private and public land that they care for and these groups like the Nietta Action Group.   
Time expired. 
Ms O'CONNOR - Mr Deputy Speaker, I move that the member be heard for one more minute. 
- I will allow that because I am a nice guy. 
Dr WOODRUFF - Mr Deputy Speaker, these groups, these communities that are being affected by this transmission route, which is not yet finalised, need to be able to have some surety and we are very concerned that this process which has been rushed through - pointless rushing - means that these issues need to be sorted through with the communities before they go into the process that they are going into.  There is no reason for that not to happen so we will not be supporting this bill today.