Legislative Council, Wednesday 18 September 2024

Ms O'CONNOR (Hobart)(by leave) - Mr President, I move -

That the Validation State Coastal Policy Bill 2024 be referred to Government Administration Committee B for consideration and report.

Ms FORREST (Murchison) - Mr President, I have come down here so I can eyeball the minister when necessary.

The thing about lines in the sand is that they always disappear and are constantly moving. I found that interesting.

I will address my mind to whether this bill should go to a committee. I would request a bit of leeway here because this bill, while it is not about Robbins Island, is about Robbins Island. It is in my electorate and I represent the people there who have differing views.

On whether to send this to a committee, I still need to hear more clearly any sense of urgency. I did not hear any sense of urgency clearly articulated as to why this cannot wait for fuller and more rigorous scrutiny by a parliamentary committee, particularly as the proponents have gone through a rigorous process on Robbins Island - so I will talk about Robbins Island. Even though it is not about Robbins Island, it is about Robbins Island, because ACEN, the developers there, are directly impacted by this. We know that. If you think it is not true, you can tell me.

Mr Duigan - I do not think I ever said that.

Ms FORREST - The reality is that ACEN has been through a rigorous process under the current planning scheme that does consider the latest mapping, coastal hazard identification and the like. What we have here is competing legal opinions. What a surprise.

Ms O'Connor - We have not seen one of them.

Ms FORREST - I know, but in any event, we are seeing an opinion, with all due respect to our Solicitor General or Deputy Solicitor General, whoever provided that advice. All we know is that it was from the Solicitor General's office. That is fine, and that is right and proper; that is the job of the Solicitor-General: provide advice to the government and the EPA, because they are notionally not part of the government, but they are. They are supposed to be independent, but they are not, but they are.

Anyway, what we are hearing here is there is an opinion that has been provided on a question about whether, as I understand - I will have to be corrected here, the wharf structure, this is what has triggered it so make no mistake, there was a request to the Solicitor-General's office for another project, which we assume to be the Rushy Lagoon project, that alerted the Solicitor-General's office to look here. We looked over here, which is Robbins Island. So here we are. We have an opinion that says we should look at that.

Now, I take some umbrage with the member for Hobart saying that the Circular Head Council failed to take into account the State Coastal Policy. I do not know whether they did in that the they have worked through their planning process under their planning scheme with the current and up-to-date mechanisms required to consider the coastal environment.

The coastal policy for 1996 is out of date. It does not reflect the information we now have to assess projects - whether it be the coastal pathway in between Burnie and Wynyard, also my electorate, that is underway. It is right on the coast. It required significant work to be done and funded eventually by the state to fix the erosion where you can see fresh air under the railway lines. That is how much the erosion had undertaken it. We also found quite a bit of asbestos in places. There were quite a few problems there.

I am not convinced that there is an urgency to deal with this today, right now, because there is a legal matter on foot. The golden rule, and I might channel the former member for Windermere for a moment - this is one of his pet bugbears that we do not do anything that is sub judice. When there is a legal case on foot, you run a hundred miles in the other direction as a parliamentarian; you do not insert yourself in that.

The minister tells us that the government can step in and fix; of course they can, but it does not mean it is right. That is the question being asked to consider right here, right now, today: is it right for the parliament to insert itself here and say we have decided we are not going to wait for the court to make a determination.

The court might find that the work that was done in assessing the wharf project on Robbins Island, which has had a lot more work done on it, I could show you a plan which is over there on the seat, of the work that has been done to hardly touch the ground coming over the dune area, coming to land.

We heard in in the briefing that the area where the wharf comes on is not a coastal dune. I tried to line those up with the diagrams that I have got - pretty close. There has been a lot of work done so that there is not a physical hard structure on the sand.

Members would know from local government - I am not one of those people, so I do not know as well as you would - but when a DA goes - I have done a DA for a house, you can make adjustments to it to modify and reflect what actually needs to happen, as we did when we renovated our really old house - when you lift up a floorboard and you think, 'oh my goodness', you have to change things a bit and the DA allows for that to deal with the problem underneath the floor that you could not see or the walls leaned out and you cannot run a sliding door there because it just does not work. So, there are all those things.

What we are being asked to do today is to validate retrospectively, maybe you want to argue the point about whether it is retrospective, we are asking in the bill to go to the [4.30.14] validating decisions that were made in the past, which are - so it is validating retrospectively decisions of the past. It does have a retrospective application.

We can all play around with the language. We can all do that.

I just want to go to some of my points here. As the member for Hobart said, we have suspended the budget discussion, which is generally when we have done this. In all my 19 years here, the only time we do this is if it is really urgent legislation or if it is budget related. I have not been convinced of the former, and the latter is clearly not the case.

I can see both sides of this. I have met with members of my community who are opposed to Robbins Island no matter what hoops are jumped through, what measures are taken. I respect their views on that. I, too, have concerns about a wind farm on that island - for many reasons.

I have also had meetings and briefings with ACEN right from when it was UPC, right through to now. I understand, as best as I can without all the technical knowledge, the nature of the project. I also understand it has been through a rigorous assessment process. Yes, it is now being appealed and the court has a very important role in determining appeals. That is what they are there for. So, if we start inserting ourselves in before an appeal is completed - admittedly, the whole appeal will not fall over if we pass this bill, because there is still an appeal process on foot that will continue.

I asked today in the briefing what is the expected time line for that, because I understood it to be November. Apparently it has now been pushed out to December and, as we know, courts do not always finalise matters when they anticipate to for a range of reasons. But there are two sides to this. We do not want any developer - you are building a house or building a multistorey apartment block or you are building a massive shopping centre or you are building a coastal pathway or you are building a renewable energy asset, which we actually need more of, for any of those things, or building a road, or anything that requires a DA - we want people involved in that process to have some certainty. However, this is what you have to prove - and how many times have I heard this in my office: 'Oh my god, now the council needs something else, now the rules have changed or they did not ask for that and now they are asking for it.'? This sort of stuff; it drives people insane. We have seen it with all manner of other big projects.

So, we need to provide a clear set of rules. To come back to whether this should go to a committee: we need to understand more fully the implications of this legislation and if the urgency - well, I do not know what the urgency is, but if it is to finalise a particular matter before the courts so that the Robbins Island wind farm proponents, ACEN, can get on, well, they cannot get on. They cannot get on until the court process has completely unfolded, which is at least until December and beyond. Then we are still waiting for minister Plibersek to make her determinations under the EPBC Act.

Now, I understand that that is probably more imminent than the court decision, but how would know? I mean, ask MMG how long they have to wait for these things. So, I just cannot see the urgency. Now, if there are other projects like the coastal pathway, like the Cam River bridge, like these other projects that are being done - and by the government, effectively, they are government projects those two - then I ask: where is the massive liability issue here that needs to be done today, to be dealt with today? Is there a threat of a court action against the Burnie City Council at the moment?

That is where most of the works were, in Burnie City Council's area, where the problems have been.

Mrs Hiscutt - Through you, Mr President, or is it more -

Ms FORREST - But is it urgently needing to be fixed? This is the problem - or do we have time to have a better look at this and understand that? I can absolutely see both sides. I can, and for me to try to decide whether I should insert myself into this, which is what I am being asked to do, ahead of a court decision that could clarify it - and who is to say that the court is going to agree with the Solicitor-General's advice here?

Ms O'Connor - Exactly.

Ms FORREST - They may or they may not. They might say, 'Well actually, yes'.

I am not the court. I am certainly not the members of the judiciary who are tasked with this role. They might say it is not clear, but the work that has been done in the DA for the wharf means effectively they have covered on it. If they have not, then, as with previous court cases - it is not the same as this obviously, but similar - they provide guidance as to what needs to happen. That would then inform a review of the coastal policy, which should have been done years ago.

They did not get rid of it and just rely on rigorous planning schemes. One way or the other, you cannot have a completely out of date policy that you lay over the top of a very modern planning scheme. If you do, you are asking for trouble. I would say the government has been asking for trouble since 1996 - perhaps not right then; it was probably contemporary at the time. Let us say 2003, or 2004 or 2005. It should at least then have been updated.

Ms O'Connor - In 10 years there has not been any action on the State Coastal Policy.

Ms FORREST - I know, yes. I remember when, in this place, not long after I got here, the State Policy on the Protection of Agricultural Land was a pretty big issue, and there was some work done on that. At that time too, people said, 'What about the State Coastal Policy? That is another one that needs looking at.' But I have not seen anything.

Mrs Hiscutt - Through you, Mr President, we were told about the EPA director having to front up to court on Monday morning.

Ms FORREST - For a directions hearing, yes. That is what he told us.

Mrs Hiscutt - I understand. I am just recalling that as I am listening.

Ms FORREST - Yes. The director of EPA, Wes Ford, told us at the briefing that there was a directions hearing on Monday, and if this bill had passed by then maybe that is the urgency, so we can withdraw the action. The minister said, 'Do not stand idly by waiting for the court to make a decision'. I think sometimes we should.

I will listen to other members' comments, but at this point I think if there has not been a case made for the urgency of it - I do not know how long it would take Committee B to do the work.

Ms O'Connor - We are pretty efficient.

Ms FORREST - Yes. But it is not a broad ranging inquiry. It is trying to understand the implications of this legislation and whether it is appropriate or not in its current form. I will wait to hear other members' comments before I decide.