Senate Environment and Communications Legislation Committee, , 2:14:46 to 3:08:36
The committee reviews the progress of national environmental standards and the status of bilateral assessment agreements with states.
Topics: EPBC Act, Law reform, Marine parks
Speakers: Hon Murray Watt, Shane Gaddes, Rachel Parry, Tyron Whitten, Susan McDonald, Dean Knudson, Dean Smith, Kylie Calhoun, Maya Stuart-Fox, Mike Kaiser, Speaker 19, Speaker 23, Varun Ghosh
>> Okay. Um thank you, Senator Hanson Young. We'll come back to you. Um are any of the coalition senators seeking >> Um Senator Smith,
could you just provide me with um it's not a line of questioning I've pursued previously. So, um, be as expansive as you need to be, but just provide me with an update of the progress of the National Environmental Standards.
>> Sure. Senator, uh, Rachel Parry, Deputy Secretary, we'll just get the relevant staff to the table and they can give you a detailed update on the standards. >> Good day, Senator. Shane Gatis, head of the environment law reform task force in the department. Um, you may recall that the that the the government put out uh two standards to consult on when the bill was introduced to parliament in uh October last year, October, November last year. Those two standards, the matter of national and envir environmental significance standard and the offset standard were open to consultation until the 30th of January. Uh we received in the order of 700 submissions on those standards and we are working through the detail of those submissions. In the meantime, we are working on an additional three standards that the minister has announced will be the next branch. uh the first nations engagement standard uh the data and information standard and the community engagement standard. Uh we're doing targeted consultation on those draft standards. We anticipate that we'll go out for a second round of consultation on the matter of matter of national environment standard and the offset standard uh probably in mid-March. And around about the same time we'll put the additional three standards out that I just mentioned for consultation. They'll be out for a minimum 20 business day consultation period at which stage we'll compile the the comments from those make adjustments and put them to the minister to make those standards that they're in
>> So the 20 business days is that from the
>> It's it's when the minister agrees for us to release those for consultation when he's happy with those standards. >> At this stage we anticipate it will be around mid-March. That might change
standards or just in regards to the
>> for both >> for both us. Sorry.
>> And would you characterize them as 700 individual submissions or did many of them take the form of a form letter or a
campaign letter? We we're still working through that, Senator. My team have advised me that roughly 30% at that stage on the first pass [clears throat] look like they may have been part of a campaign, but we we would have to go through and analyze them all in more
the time frame is met, mid-March, 20 business days, uh which is approximately a month. Mhm. And then what's the process after that? That's a that's 20 business days consultation.
>> Consultation. So again, we would need to go through and review the results of that consultation. Uh make any relevant adjustments to the to the standards and then brief the minister on what we would think would be the final standards and subject to the minister's satisfaction, he would make those standards
>> and they go before the parliament or
before the senate. So they they're they'll take they'll take the form of a regulation. So they'll go to the governor general to be to be made and then they will be subject to disallowance for 15 sitting days.
>> So um the 20 business days consultation uh is that uh desktop consultations or will that involve uh roundts um discussions?
Senator, we we we propose to put those out on the department's have your say website the same way we do with exposure draft of other regulations. Um we will do we are doing targeted consultation with with various stakeholders the same group of stakeholders that we did with the the reforms last year. Proponents that wish to talk to us about the the the content of the standards will accept those meetings and work them through. We haven't yet determined whether or not we would put out uh roundts or webinars or other things when those standards come come out. We we may supplement the the as you would call it desktop uh consultation with some face toface meetings or online meetings.
as a composite i.e. all the standards presented to parliament at the same time or will be will they be presented to the parliament um you know individually will each standard have its own um you know presentation date or put another way are they going to the governor general as a composite or are they going to the governor general >> um individually
>> I can't question Senator that's that's a matter for the minister and it's a matter for the time in which we have those standards is to given to the minister. So, um it's a matter for for government to decide when we've finished our work on the standards.
>> Minister, what's your expectation?
>> I I haven't given that consideration yet. I mean, we we just finished the consultation, the first round of consultations. So, I'll need to receive advice on all of those matters before I can make a decision.
Um when would be best practice from your perspective in terms to have the standards before the parliament?
>> Oh, I think ideally we want to have at least a couple of the standards finalized um by the 1st of July, which is when the EPA commences its operation. >> Um the the intention as I said in my opening statement is that different aspects of the reforms will commence at different times. Um, but we we want to have the standards finalized as soon as we can. It's a large amount of work as you can hear. Um, but we've always said that we want to have at least a couple of them up and ready um by the 1st of July. If we can do better than that, that would be great.
>> And when do you expect all the standards to be up and ready by? Well, I think the
thing is I mean the department might be a better place than me to sort of give an indication of where of timelines for these five standards, but we expect over time that new standards will be developed to deal with newly emerging issues. So it could well be that there's new standards drafted in 5 years time to deal with a newly emerging issue. But what we've decided to do, we we sort of feel that there's a there's a certain number of standards that we need right now to make the system work. That's what we're focusing on and and Mr. Gatis has taken you through the five that are the highest priority.
>> So when do you expect the five to be? I'm just trying to understand, you know, are we thinking uh July >> 2026 for the first two and then are we thinking August 2026 for the next one and you know so I'm thinking you know is the time frame for the five calendar year 2026 or is there a chance I'm just thinking of stakeholders here is there a chance that uh um the fifth one the fourth and fifth one actually might be calendar year 2027
>> what do we think is realistic.
um, Senator, ideally, we would have most of the or or all of the five standards subject to to them being acceptable to the minister by mid year. And the reason the reason I say that is because the standards require proponents to change their behavior. >> The new legal tests under the act switch on at the latest in on one December 2026. So we would want proponents to have a sufficient length of time to engage with the standards to change their practices and to have their referrals that come in when those new provisions uh come in later in the year. >> Yeah. >> So the practices have changed and their their referrals go through the system in a
>> way. Thank you. Thank you very much for that cuz that was that's what I was looking for. I was looking for a recognition of the um the December 2026 uh expectations or requirements. That's right. Okay.
>> And and Senator Smith that [clears throat] this is you know, the the degree of urgency with which we're uh drafting and preparing these standards is reflected in the fact that we we had the department begin drafting the standards before we'd even passed a bill. >> Um so my recollection is that those two first draft standards were out for consultation before we'd even passed a bill. So we we we recognize the the great interest in this and the need to to progress them. Um and I can assure you there's a mountain of work going
>> Um okay. Um the bilaterals, can I get an update in regards to the where the
>> Um I'll start off Senator and then uh others can join us at the table. So the bilaterals are currently a feature they're a feature of the existing act. Um what the new what the reforms did was in essence make them much easier, much more much more functional. They don't break as easily. So we're in the process now of uh engaging with our colleagues and our counterparts in the jurisdictions to solidify existing bilaterals and initiate discussion on new bilaterals where they currently don't exist. So sorry
>> and maybe if I I can just give you a very general answer to begin with Senator Smith and then hand over to officials. Again um even before the bill was passed we had begun negotiations at both ministerial and departmental level with different states around forming new bilaterals in anticipation that the bill would be passed. Obviously, now that the bill has been passed, we can, you know, progress those negotiations in more detail. Um, you may have heard me say previously that under the existing law prior to the amendments, New South Wales was really the only state where we had a strongly functioning bilateral agreement around the assessment of projects. Um we there are some you know there are agreements in place with other states that go okay but New South Wales has been operating better. There were some states that we didn't have a functioning bilateral agreement. Western Australia being one of them. Um you would be aware that the Western Australian government is very keen to enter a bilateral agreement with us as are we. Um so you know I've had discussions with ministers in that government. our department has had discussions with the officials and maybe they can elaborate if you'd like on, you know, what further developments there are in those, but again, it's a high priority to get them done.
>> So, Senator, I'll just have Miss Gallan just go through and um outline which jurisdiction we have bilaterals with and then our efforts around getting getting new bilaterals up and going. As the minister said, it's a strong priority for some jurisdictions. WA in particular, Queensland is is very keen, New South Wales. We're looking to continue to mature that bilateral arrangement as well.
>> Thank you. Uh Kate Garland, branch head for the uh environmental assessments branch for New South Wales and the ACT. Um Senator, we have um we have assessment bilaterals currently in place for uh it's it's five out of the seven jurisdictions. So, um, New South Wales, Victoria, Tasmania, Queensland, and Northern Territory. And we're working hard um to actually establish assessment bilateral agreements under the current legislation with those jurisdictions to put us in a good position to actually start negotiate. Well, to to put us in a good position to finalize agreements under the new legislation when when those laws come
can you give the committee a sense of um which jurisdictions are the easiest and which and progressing towards the more difficult or intrigent?
>> Uh I think Senator that's a that's an opinion question. So what I um
but there would be some core facts. There would be some core facts or some core data points that you would use.
There's some core facts in terms of New South Wales is certainly the jurisdiction where we have the highest percentage of projects go through um bilateral agreements with and bilateral assessments with um different jurisdictions can also use different um tools within the EPBC act. So bilateral agreements is one tool, strategic assessments are also another. So jurisdictions have entered into those with us as well. So they have different options to them which is why I'm a bit reluctant to categorize them as uh recalcitrant states. that's that's not the case. It's just they take advantage of different tools. There's regional plans, there's strategic assessments, there's bilateral agreements, but some it is true that some jurisdictions have more mature um bilateral agreements in
place. One other thing I can add to that, Senator Smith, is that um in the meeting we held of federal, state and territory environment ministers um in the fourth quarter of last year um there was unanimous uh agreement around the need to enter these bilaterals. So it's I think there's a strong degree of support from all jurisdictions because they can see that that is an efficient means to um both protect the environment and speed up approvals. Something that everyone wants to see more of.
>> How many bilateral agreements do you expect to be in place when the legislation comes into effect?
>> So parts of the legislation are already in effect. Um so we do as as Miss Gallan has outlined there are existing bilateral agreements. So there's nothing stopping us from continuing to uh enter into those bilateral agreements. We are engaging with every state in this territory. Um as the minister indicated, we're not we're not reaching any reluctance by any states um to enter into bilateral agreements with us. Some jurisdictions um where we know there's a higher percentage of projects. For instance, so Queensland, New South Wales, um Western Australia, that's where our highest case loads have traditionally come from. So it makes sense for us to focus on those jurisdictions. But as I've indicated, there are there are other tools that are open to uh every state and territory to work with us um cooperatively in order to streamline assessment and approval
>> Just talk to me specifically about Western Australia. When did the bilateral agreement agreement start? Are the discussions on the bilateral agreements begin?
>> Um so we have initiated discussions with the Western Australian government um on a bilateral agreement. I would have to take on notice exactly when those began. Senator, those have been very active discussions with the WA government officials um throughout the course of the reform process. We brief them very very regularly. Um both the minister, myself, Mr. Gattis were in Western Australia very very regularly having conversations with the [clears throat] WA government during the reform process and have continued since.
>> So what is the pro progress? What what what what resolution what time frame are you expecting a resolution
>> So I think um Senator, we go through a process when we negotiate a bilateral agreement about what those terms are, what would be contained within them. We're starting those discussions now. Um we are keen to get these bilaterals in place but we don't have a definitive time frame um that we would say that's our deadline but there is a great desire on the side of both parties to initiate this and land these as quickly as possible.
>> What if any are some of the impediments to a sort of an expeditious resolution of this with Western Australia?
>> There's no >> Well, yeah, just one ticket. Uh there's no um impediments per se. They have to be agreed to by um ministers and the content has to be agreed to but there's no there's no stumbling blocks in terms of kind of a difference of view on whether or not a bilateral agreement would be in the interests of both parties.
>> Senator, if I could just add to that. So the I'll take you back to the conversation we're having about standards. So one of the things that the states will want to see before they enter a new bilateral agreement under the revised act would be the standards. So they're they're eager to engage with us on the draft standards as they start talking to us about what a new revised bilateral might look like. So there's a logical sequencing as we go through the year where we need to talk to the states and territories businesses about the standards subject to the states being able to meet the new standards. That's a fairly uh integral part of the new bal bilateral agreements that we'll have to have in place before the new legal tests commence. And as I spoke to you about earlier, they are at on the 1st of December 2026 unless they're proclaimed earlier. So there are a few things that we need to line up getting the standards landed uh and then having those in place, making sure that the states can meet those standards and the new bilateral assessment assessment bilateral agreements and then having the new legal test commence in the later
>> Exactly. Sounds like a very convoluted and the risk is you know drawn out
>> well process. >> To be fair, Senator Smith, can I remind you that Graeme Samuel provided his review 5 years ago, 5 and a half years ago to the then environment minister, Ms. Lee. So I think any independent observer would see that we've made remarkable progress in a pretty short amount of time over the last 12 months.
>> I'm interested in I'm interested in the future. I'm interested in the future because these matters are interrelated and the disallow and the disallowable mechanism. >> The disallowable mechanism means >> that when the standards do get to the Senate, the Senate might have a
>> Yep. And >> what I'd say to that is two things. That is why we are consulting so widely now about the draft standards. We want to get them right, but I guess it'll be a decision for the coalition, if it's a coalition and the Greens about whether they want to stand in the way of those standards and hold up the development of bilaterals and everything else that relies on it. That'll be a decision for all of you.
>> Does Western Australian government has the West Australian government indicated a preferred time frame?
>> they Sorry, I won't give my flippant response. Um, they they're really keen. they could not be keener um to to finalize a bilateral. Um I've I've spoken about it directly with the premier on a number of occasions, a number of his ministers, I'm sure the departmental officials, it's been made clear, but but equally we're very keen as well. Um you know the the bilateral agreements while it's only one tool as Ms. Parry said, it is a key tool for us to be able to speed up the assessment and approval project process and that's that was a fundamental objective of these reforms. So, we want to get moving
>> and Senator, I can indicate that um officials are traveling to Western Australia again next week to continue to pursue those conversations.
>> So, everyone is keen, but no one's working to a time frame.
>> Well, again, let's be let's let's be let's be it is a negotiation and um you know, we only passed these reforms in late November. Um there there were not there were going to be no standards until we passed that law. There were going to be no better however you want to describe them bilateral agreements. Um notwithstanding that we began the work on both the bilaterals and the standards before it. So I we then entered the Christmas period where you know officials who'd been working enormous hours on the legislation they deserved a little break. They're now back into it. They've been negotiating again with Western Australia and other states since Christmas. We're only in early February. Trust me, we we the department is very clear on my desire and the government's desire to to move quickly on these reforms, >> including the standards and the bilaterals. But, you know, we couldn't have them done day one after the laws were passed.
>> I don't think anyone's expecting that. That's certainly not what I'm That's not what I'm saying. So, how many rounds of negotiations do you expect there to be with Western Australia on its bilateral?
>> As many as many as it takes, Senator, we will land a bilateral agreement. That's um that is an agreement to both ministers.
>> So, what are the what are the live issues in those negotiations with Western Australia?
>> Um I'd have to take that on notice, Senator. Um there's none that immediately come to mind in terms of you know again there's just various um process issues that we need to go through. Um we will zero in on particular um how we want the bilateral agreement to work. The standards will come into play. So there's various elements to the negotiation but there's no kind of particular stumbling blocks
at this point. I think more broadly I wouldn't and I don't mean this to sound like a stumbling block but one of the things that we need to achieve in I if if the aim of a bilateral agreement is to empower a state government to undertake assessments or overtime approvals of projects >> that meet our standards. >> We need we need to be certain that the the relevant state government's processes can meet our standards. uh and in fact that is also something that will need to be uh assessed by the new EPA because the new EPA will have the role one of its roles will be to accredit state processes as meeting our standards and then assure have an an ongoing assurance role to ensure that they continue meeting those standards. So, you know, one key issue, not a stumbling block, but one key issue will be that ensuring that the the relevant states processes meet our standards. Some states will be closer than others. That that will be a straightforward matter with some states. It might be a bit more, you know, take a bit more time with others.
>> And just to just to add to that, Senator, there's also a legal overview in terms of we need to make sure that legislation in WA will cover the matters that we regulate. So there's an there's an overlay uh there that we look at. We look at um different sectors that we regulate for that the WA government either does or does not. So there's there's a legislative and legal overlay uh to the process as well. But again this is um this is well uh traversed and well known territory given the extensive bilaterals that we currently have in place um across the country.
Are you expecting Western Australia to have to legislate itself in order to give effect to the bilateral?
>> Um, that would be a matter for the WA government.
>> Have you identified or has it identified to you any legislation that it may need to because that'll affect the timing.
>> Um, not to my knowledge, Senator, but I'd have to take that on notice.
>> Thank you.
>> Thank you. >> Thank you, Senator Smith. Senator
McDonald. Thank you very much, Chief. [clears throat] Um, I will follow on with uh some questions around the EPBC changes, particularly those ones that we didn't have an opportunity to test uh in the committee inquiry because they were subject to the uh the deal done with the the Greens Party uh at the end particularly around uh the 15-year threshold. So DQ has cited uh the study uh Thomas Etal 2025 for the 15-year threshold, but this study shows that species use of regrowth can be anywhere from uh 3 to 68 years. And I'm wondering why there was not an accounting for this variation.
So, Senator um 15 years as as you heard in that study was was considered uh a midpoint. It was a it was an area where where mature regrowth starts to become valuable habitat. The other consideration is that 15 years is consistent with some of the state legislation in Queensland as well. So there are other there is other pieces of legislation that aligns on the 15-year threshold. So it's very difficult to get one age class for vegetation that would match everything across the board. That was considered to be the best proxy we could we could determine.
>> All right. Well, um lead ecologist, Professor David Linder said that in regards to biodiversity conservation, you could not do the same management practices everywhere. And to your point, you've picked a number that seems very arbitrary for different um habitat and biodiversity locations.
>> Well, the I think you would support the idea, Senator, that uh it's important for all stakeholders and and including land owners to have clarity in regulation. And so you need to pick a year a you know a a period of time different people will have different views on whether it should be 15 years 20 years 3 years 68 years according to what you were saying but you know I don't think it's in anyone's interests to have a mixture of years you need to have some certainty some people will agree with that some people will not and the department's explained why we went with the 15 years
>> senator um I would just add to the to the minister and Mr. to Gabby's point around we looked at the fact that native clearing is one of the greatest contributors to to um threatened species uh habitat loss fragmentation it's a key factor behind the listing of 60% of Australia's threatened species so when we looked at that we looked at the mature regrowth provides valuable threatened species habitat that was part of the policy rationale and the age of that regrowth um we looked at the evidence and again it can vary between species but the minister's point, at some point you have to have a a clear marker in order to give that regulatory certainty for proponents as well. Um the scientific evidence would suggest that 15 years is a broadly appropriate benchmark and we noted that that's the same in the the Queensland vegetation management act uses 15 years as a
same study that was cited by DQ uh it says that the median age at which regrowth vegetation provided 75% of the relative value of remnant habitat was at 36 years. So again, we're going to keep talking around this, but there is a great deal of concern from uh land managers and I'm just trying to understand, you know, you've picked out a couple of reasons why, but none of them seem to be reflective of the very varied ecosystems that we have around Australia, and you've picked this arbitrary number of 15 years, which is going to be difficult for some communities to manage. I think
it would be much more difficult for communities to manage if we said for this kind of ecosystem it's 15, for this kind of ecosystem it's 25, for this kind of this. I think I know the kind of questions you'd be asking if we did
>> Well, I don't know that that would be the case because you've just applied this this 15-year number to some communities where that that number is is really problematic to appropriate land management. And I'll turn to the North Queensland flood shortly as a as a specific example of that. Um so to this point about producers getting regulatory certainty when the matters of environmental significance uh species distribution modeling relies upon the national vegetation information system NVIS which has poor consistency across jurisdictional boundaries and huge spatial data gaps. So to your point about producers uncertainty, how does that work when there is data gaps and there's very poor consistency across each of these regions?
>> Well, that who's put who's putting that
>> uh well this is a view from this Thomas atet study.
>> So a couple of points on that I think Mr. Wyndham wants to raise, but it does go to um the data both the proponent and the assessors are using. C
>> can I just lay out how the how how the revised act works and then we might go to Mr. Windom first because >> it's not a straight ban on clearing land that hasn't been cleared for 15 years. So the the the previous or the current act before the provisions were amended allowed for continuation of use of land. So if a if an agricultural landholder continuously cleared regrowth in that property, then it didn't need to seek an approval. The changes mean that those properties that haven't cleared for 15 years, which it's hard to make a case that it's been continuous use, if it hasn't occurred for 15 years, would need to then consider whether or not their action is going to have a significant impact on any of those naturally protected matters. So it's not a straight out ban. It means that those land holders are then subject to the same laws as every other industry across Australia. They need to go and under undertake a self assessment, seek some advice if they need to about whether or not their action is going to have a significant impact on any of our nationalally protected matters. If that self assessment indicates that they may need approval, they need to then go and refer their action as per every other industry in Australia. Then I get might get Mr. Wyndham just to supplement that with how that might some of those questions around the granularity of D.
>> So just to clarify on that this is exactly the concern that uh land managers have raised with me is that say they have land that hasn't been cleared for 14 years. It is taking at least 18 months to get a decision from departments around if they do think that they need to self uh under their self assessment that they need to refer themselves. What happens if they run out of time because of delays in the assessment process?
>> Um Senator, I'm not sure where you're getting 18 months from. There's there's been very few uh agricultural referrals and I'm not sure that we have that much data that say it will take 18 months. our new streamline assessment pathway if people have done the right due diligence and they have they submit the right information with their referral can have an approval within 50 business days. So farmers will need to start to plan for that time and not leave it 15 years and then put in a last minute and say that there's not enough time to do it.
>> So this is a new the new streamline yeah >> uh pathway which wasn't in place previously. So, you're saying that that is a a 50-day um hard marker that you'll
>> 50day time frames if you if you have all the all of the information provided. It's one of the one of the key parts to the reforms to speed up processes. If you meet the standards, you submit all your information in the correct format, 50 statute, 50 business uh 50 days
statute time frame. Keep in mind Senator um you know a proponent would have to decide that the clearing has an impact on a matter of national significance. So that that's part of the self self assessment and referral process. So not everyone who is undertaking clearing would trigger that threshold.
>> Okay Senator McDonald I will just need to move the call shortly but if you have questions we can come back to you.
>> Okay. Well I'll finish on this section Just back to the the um the 15-year threshold in regards to the MNES given that there are these big spatial data gaps um as well as huge taxonomic errors within that. Some vegetation species are listed under different species names in different states as well as having different conservation statuses. you know, there's there's massive regulatory inconsistency that we're now asking uh farmers and and land managers to to be across these variations and if they get it wrong, the penalties are not only ownorous but but very stressful in the way they're dealt
with. So, Senator, I'm going to ask my uh colleague to discuss Environment Information Australia and the kind of data and information that is available for proponents and that also what uh assessments and what our assessment team and assessors also use.
>> Yeah, thank thank you Miss Parry. Um so, Senator, good news is is back about a decade ago, the then government uh started a process called the common assessment methodology. What that is doing is aligning the listing status and the information behind what needs to be done for species across the country. The vast majority of project or pardon me u species that we're assessing are actually nominations from the state to make that alignment clear. So you're absolutely right that we want perfect alignment between the state listing and the commonwealth listing. So there isn't that ambiguity and that is well and truly underway. Um so I wanted to give you that assurance. And then in terms of environmental information Australia, one of the key things that we're uh working towards there is getting agreements with the states and territories to be able to use not only their information but also proponent information and make that available to everyone. So there is uh whatever information exists will be available. The other thing as my colleagues have also mentioned it is a self assessment. I think most land holders know what they have on their land. they know the the the age, etc. of the species on that land. So, if we combine those two things, giving certainty over the species that are listed and also as much publicly available information as we have, we think we're we're setting this up to evolve into a really good system going
forward. >> When you say it will be public publicly available, is it like something like the Globe in Queensland or what's the format for the publicly available data? Yeah.
So, um, my colleague from Environmental Information Australia will be here in a little bit, but Oh, oh, she's she's down at the the corner there. Maya, do you
want to go ahead? >> Environment Information Australia. Senator, you're right. There's of course all sorts of um issues with data. One of the reasons that Environment Information Australia has been set up is to start to tackle those information gaps and and start to improve the information that we have available for people both internally and externally. Uh my colleague mentioned the new standard, the new data and information standard. One of the things that that will enable us to do is to start to uh get information from proponents in a form that allows that information to be interoperable and reusable. At the moment, the information that's coming in for proponents isn't uh routinely reused for other purposes. So there's not a mechanism for continuous improvement in the system. Once we start to get that information in, it allows us to combine that information with other information available through the states and territories and also that's being collected through environmental organizations uh and from researchers around the country to start to bring that together and improve the confidence that we have in our species distribution models which was one of the things that you referred to earlier. So when you're working with a very small number of data points, your uh species distribution models are necessarily uh fairly crude and they need to be fairly precautionary to to give us an indication of where we think those species are. As you get more and more uh data through, you can have a lot more confidence and that means having much more much tighter and more accurate if you like species distribution models and that's what we're aiming towards.
>> All right, so I'll finish on this chair. Um so what we've done is we've imposed a 15-year um arbitrary number across species and ecosystems. But as that data is collected, is there a suggestion then that greater data, greater understanding of impact of age of vegetation in those regions um and its impact on potentially threatened species will mean that different regions will become more nuanced with their with that um decision making.
>> Yeah, I think absolutely we're looking to continuously improve both the mapping tools that we have available for people. So the spatial representation of where species are of where our biodiversity uh hotspots or where our areas are of high biodiversity value. So we will look to improve that over time. And we're also looking to improve our science uh and information about uh species and what their habitat needs are. So over time you will get increasingly granular information available for proponents that will improve certainty in the
system. So Minister, you'll be happy to examine that that as proponents come forward with this data that demonstrates that 15 years is an arbitrary number that for the reasons identified by the department has been put into the legislation now but may not be suitable for different ecosystems uh and would be something that the department could examine.
>> Well, I don't accept the characterization that this is an arbitrary uh choice. We've we've gone through the reasons for settling on the 15-year time if if what you're asking is whether we would reconsider that 15-year time frame in the future, I've seen no reason why we would do that. And and again, I just want to repeat the point that the changes that we've put in place for agricultural land clearing mean that agriculture is brought in line with every other industry in terms of needing to have its environmental impacts assessed and approved by the federal government if they're going to have a significant impact on the environment. Nothing more, nothing less. If you want to build a mine, if you want to build a wind farm, if you want to do property development, >> uh, and you're going to have a significant impact on the environment, >> then you need to get assessed and approved. And that's what we're saying will now occur for agriculture as well.
>> I'll come Thank you, Minister Senator. Senator Whitten.
>> Um, I'd like to table um a letter dated 7th of October addressed the Minister W. Um, but I haven't received an answer to as yet. Thank you. Um, and it's referring to the Bunry Offshore Marine Survey in WA, which
>> is this the letter that you raised a previous time as well that uh we then had some followup about getting your reply or is this a separate issue?
>> Separate issue. >> Separate issue. >> Yeah. No, I eventually got that. Yeah. >> Reply. Thank you. yeah. I'd like to talk about the fade to assess the pygmy blue whale separately. Uh referring to an answer to questions on notice number 297. And I want to address the department's implication that a pygmy the pygmy blue whale does not require separate assessment um or that it was covered within the general category of blue whales. So I've asked why the pygmy blue whale has not uh been separately assessed in the determination and the answer says that it was um yet the department's fi lexir 80629 document 49 uh fails to list the pygmy blue whale separately in the significant impact and biology important area tables. It has its own northern and southern migration BAS and is recognized by the department as a distinct subspecies within uh with distinct ecological behavior. Um under section 751 and 1362 of the UPBC act, each listed threatened and migratory species must be assessed individually. The pygmy blue whale is separately listed as both endangered and migratory. yet document 49 did not assess it at I'd also like to take
>> just just so we can keep up. Senator W. So the question is could you just repeat the question? Why was a decision made?
>> I haven't really got to a question. I'm just putting some facts on what I believe is facts on the record to start with. Um I'd also like to table um the formal demand for a controlled action from rainforest reserves. now this notice has been copied to the order general uh Dr. Mcclesich and I'd like to read point three of the notice. Uh pygmy blue whale not separately assessed distinct distinct taxon. The pygmy blue whale is a listed endangered migratory subspecies with discrete migration corridors and foraging bas within the survey area. Treating this subspecies as merely blue whale and failing to assess it distinctly breaches section 75 and section 136 and undermines any no significant impact conclusion. The pygmy blue whale and it's got its taxiderermic name which I'm not going to try is separately listed under the EPBC act and cannot lawfully be assessed as part of the broader beusculus population. So the question is how can the department say the pygmy blue whale has been assessed separately when the foi clearly shows that it has not?
>> I might we may not be able to answer that uh a question that specific but we can miss kahune is up to the task I
>> Um thank you Senator I'm Kylie Calhoun Brent headed environmental regulation division. Um the referral or the the detail you're talking about was for the marine survey and offshore um surveys from the University of um Western Australia and it was about the geoysical
data to do the survey. >> I'm sorry miss I'm I'm really quite deaf. Um I don't mind if you're yelling at me. [laughter] blue whales was considered as part of the blue whales um considerations at the referral stage. The information based on how what the project was actually undertaking uh where the impact would be how they were avoiding it or mitigating
it was determined not to be a controlled action. And I think the pygmy blue whale was incorporated in the blue whale consideration which is um what happens when we're looking at a referral in terms of what species will be considered
>> So my understanding is it's meant to be its own um listing in the the report not not grouped in with something else. So the
>> it it it depends on what the action is from the referral and where it's having the impact. >> And so it it was part of the consideration for th for four whale species. Um it it's [clears throat] not listed separately as you're referring to, but it was considered as part of the the decision as to whether it would be a controlled action or not a controlled action based on the action that was
understanding is that um under legislation if it's a endangered or uh species it has to have its own um assessment. It can't be grouped in with
It well it it had an assessment as part of the blue whale species which were determined you sort of the impacts for each of the different species under there were um general considerations I would suggest and there was not there there was no further information be for us nor has there been information presented prior or after sorry after the decision that would would change that and the considerations within the referral documents that you have seen um captured uh this this um species within.
>> But sorry, is it not the case that if it's endangered, it must have its own individual assessment, not be grouped in with something else because it's also got blue whale in the name. It's a p the pygmy blue whale is endangered in and of its own right and should be assessed separately is my understanding under the
legislation. So I think Senator um we've we've just got your letter so I think we need to have time to to go through this but I think what Miss Calhoun is identifying and without um having the benefit of all the facts on the table the assessment officer has to determine whether or not the matter is going to have a significant impact on the protected matter. And in this case from what it sounds like that that threshold was not reached that the action that the proponent was taken was not having a
significant impact. My understanding is uh whether there's going to be a a threshold breached or not because it's endangered. It must be assessed and it
>> Yeah. Can we take that on notice, Senator? Because I don't think that's correct, but I'd like to have the benefit of getting advice on that and I'd like to come back to you. question
sort of specifically is around >> the legislation says if something is endangered, it must be assessed individually. You can't lump it in with something else and say we've done a full
>> Senator, only if the proposed action is going to have an impact that meets a
threshold. So I I think the I think what the senator is saying is even it should be assessed even if that threshold isn't determined and I don't think that's the case because it has to reach a certain the impact has to reach a certain threshold.
>> Let's let's take it on notice.
>> So we'll take that on notice.
>> And Senator, can I also offer you an apology for not having responded to your letter of the 7th of October? That's not
>> I was just I'm just trying to confirm that we haven't replied. But if we have not replied then I endorse that apology.
We should be able to get the last reply went to head office in Queensland.
>> I know there wasn't. That's why I asked earlier. I thought I wondered if it was the same thing. So, my apologies.
>> I'll give you my office number. You can just drop it over there.
>> But but ju just just to be clear. Um so um because it it's a complicated system that I didn't understand myself until I came to this role. the the um we only uh assess an impact on a particular matter if it's going to have a significant impact on that matter. And what I think we're hearing is that in this case it may be that a decision was made that the particular activity would not have a significant impact on the species you're talking about and therefore it did not require the sort of assessment that you're asking for. I think that's
>> that's precisely
>> we're we're confirming that that's what occurred here but we think that might be the answer to your question that no assessment was needed because there was not going to be a significant impact. If that's wrong, we'll we'll confir we'll come back to you
>> just in this document, which I'm assuming is your document under the the likelihood of occurrence, which I'm assuming is a a negative impact in some regard for the blue whale where the pygmy whale is um included, it says likely. So, I don't know how we're saying if you've assessed that it isn't likely.
>> Well, but they're different. I mean I mean it sounds like semantics here but um [clears throat] likely doesn't necessarily mean significant. I mean if I don't know that I don't know the detail of this application. So I I can give you like a general answer. Anytime that there is a property development which is going to bulldoze koala habitat, it will obviously have a an impact on the koalas in that area. that doesn't necessarily mean that that impact is a significant impact from on a national scale. And so it may well be that in this instance it was determined that there there would be likely to be an impact on the species you're talking about. That doesn't necessarily make it a significant impact. >> But I might hopefully what I'm saying is correct because I don't know the details
understand your analogy with koalas, but I don't know that they're as endangered as a pygmy blue whale. So, I think it's quite significant. But, um, please take it on.
>> I'm going to take it on notice. I'm going to try and find the section of the act that we can refer back to you um that uh enables us to reach that conclusion about significance.
at the last estimates rainforest Reserve Australia's notice of um I think you suggested it was not a notice under legislation but merely a claim of breach occurring. Um now I believe that characterization is incorrect. Uh under the UPBC act, there is no prescribed form for notifying the minister of a breach. Once evidence of illegality is presented, as Rainforest Reserves Australia has done, the minister becomes obliged to act lawfully and reconsider the decision under section 78C. A follow-up clarifi clarification letter sent on the 10th of October from rainforest reserves addressed this point. It confirmed that the minister has in fact been placed on formal notice and that the distinction between uh being drawn between a statutory notice and a non-stutory notice is legally irrelevant. The obligation arises from the content, not the format. So, Minister, do you understand you've been put on notice?
>> Well, I'd want to have a look at the the facts of that case. I mean, rainforest reserves have been caught out in another parliament >> with AI generated submissions that didn't turn out to be true. So, let's just be certain that what they're saying here is accurate.
>> I would I think the point of this is that it's um uh a statutory notice and a non-stutory notice given there's no statutory format. It was still being put on notice and whether AI generated the or not is not part of the question. It is
>> it was trust. That's the problem. >> So if you're quoting stuff from them,
>> Senator,
>> you just can't trust it.
>> Senator, okay, Senators, um this is Senator Whitten's opportunity to ask questions. Um, sorry, Senator Whitten.
>> Can I just say Senator Whitten, my office has advised me that uh a reply to your letter was sent to your AP uh email address on the 21st of October. So, between the two of us, let's work out what's happened there and if you need another copy, we can get that to
you. yeah, look, I'll leave it there, chair. Um, but I'd be pleased to receive some of those answers on
>> a copy of the reply brought up to you so we can give it to you.
>> Thank you very much.