Natural Resources Management (Review) Amendment Bill

24 Mar 2011 speecharchive

This speech is to make some remarks regarding the Natural Resources Management (Review) Amendment Bill.

Adjourned debate on second reading.

(Continued from 24 February 2011.)

The Hon. J.M.A. LENSINK (15:23): I rise to make some remarks in relation to this piece of legislation. I first and foremost would like to thank the officers and the minister for providing me with a briefing, which was a joint briefing with myself and Mitch Williams, which took place late last year. Honourable members would be aware that the natural resources management legislation is a topic of great interest to many Liberal members, given that we have got more country members than anybody else, and a number of our members have primary industry backgrounds as the work that they did before being elected parliament.

The passage of legislation in 2004 was carried by the member for Davenport, who was our environment spokesperson at the time. It was quite a controversial piece of legislation, and in many ways it still is. The Natural Resources Management Act came into being in 2004. It was an amalgamation of 27 soil boards; 27 pest, animal and plant boards; and eight water catchment boards.

At the time, we expressed considerable concern that the government structure, as proposed, would lead to a burgeoning bureaucracy, which can be characterised in the vernacular language as lots of chiefs but not many Indians. The integration was proclaimed as the primary aim of that legislation. It was an integration of what had been voluntary boards, but it did not take place as the government had predicted—lots of nice rhetoric about how wonderful the system would be.

We expressed concerns at the time that the act created a clunky structure with multiple reporting processes, which has unfortunately come to pass as predicted. We acknowledge that this particular bill will in some ways address some of those concerns, but many still remain. Through the changes to those old structures, a number of local volunteer groups have been disenfranchised through well-known organisations such as Landcare, water catchment programs and the good work of many local councils which have been caught up in the new LAP process. We agree that some of the reporting processes are convoluted and will benefit from being streamlined as they are amended by this bill.

One of the other issues which also received a lot of attention at the time in 2004 was the powers being given to authorised officers. This has been the subject of recent media discussion, especially in the context of water prescription processes in the Adelaide Hills. Unfortunately, not all of the commentators in the media availed themselves of the enormous amount of work, which our party put into the 2004 act. Our then spokesperson, as I mentioned, the Hon. Ian Evans, had hundreds of amendments and the debate took many, many hours to get through.

Some of the issues that he raised for amendment of this legislation included the chains of relationships; repealed acts; encouragement and support of primary production; concerns with the objects, principles and functions; ministers' powers; provision of information; direction and function changes; the council and board membership; LGA representatives; time limits for reporting; appointments; annual reports; board regions; regions/boundaries; notifications; residency; appeals; owner agreements; financial assistance; warrants; penalties; land values; council cost adjustment; Auditor-General; fines, penalties and damages; regulations; right to silence; and continuing offences.

This particular legislation arises from a statutory review as required by section 234 of the act. The review was undertaken by the former department of water, land and biodiversity conservation, which was required to undertake that by 30 June 2007. That particular report was tabled in about August or September 2007.

Some 208 issues were raised in the report, some of which were considered outside the scope of the review, and over 160 recommendations were made. I have taken the time to go through the report from start to finish and line up the amendments in this bill before us today, and most of those recommendations arise from the report. One which does not is the right to remain silent, which I would like to indicate now is just one of the many amendments that I have instructed parliamentary counsel to draft. More on those later.

The report stated that the review fulfils section 234 of the NRM Act which it describes, 'To seek minor amendments in the existing legislation and outline opportunities to better integrate the section on land, water and the management of animals and plants.' However, my reading of section 234 does not find a narrow term of reference for the review which in subsection (1) refers to a review of the operation of this act, which is pretty broad. Subsection (2) provides that submissions must be sought from all stakeholders, including state agencies, federal agencies, local government and 'relevant industry, environment and community organisations' which, again, is pretty broad.

Further, the scope section of the 2007 report outlines the order in which stakeholders were consulted, and I quote:

Preliminary internal consultation with the NRM council, regional NRM boards and other agencies which then formed the basis for public consultation.

There is no reference in this bill before us to inconsistencies in levies which, I understand, had been anticipated by this review. Therefore, I believe that comments made by my colleagues on this bill in the other place—that the bill serves the bureaucracy in the first place—are entirely valid. In the section relating to authorised officers, the 2007 report states the following:

Several powers of authorised officers were identified as not allowing enough scope to enable them to carry out their functions fully. Issues have been raised about the effectiveness of both the educative approach and subsequent compliance where this approach has been ineffective. Several comments were received on the powers of authorised officers and include that some clarification of these powers was required, that limited powers of arrest be given to state authorised officers, that state authorised officers have powers to lock off, lock up or block irrigation infrastructure to cease illegal irrigation; that guidelines be developed and that a program is in place for appropriate skills, knowledge and procedures for a common compliance officer role.

That will be an interesting exercise indeed. I understand that, under the revised structure, DEH and the Department of Water, Land and Biodiversity Conservation have been amalgamated. Now that DENR and parts of the old Department of Water, Land and Biodiversity Conservation are within NRM, there will be a fairly expansive further review of this legislation.

I also note that the government has defended the current scope of authorised officers' powers by stating that they are no different from those which exist in other acts, particularly (as if often quoted) section 91 of the Environment Protection Act. I would be inclined to agree but only if they were ever used as a last resort. Striking the right balance depends on a healthy and open attitude from those who have the powers and a level of respect for landowners. It also requires a minister who is prepared to rein in his department if officers become heady with power and heavy-handed. Sadly, that is not the case in South Australia at this time.

My Assembly colleagues' contributions of 9 February provide plenty of examples where heavy-handed actions are taking place to the point of hampering landowners' business and getting close to sending one family broke. They also spoke about changes to available sources of funding which has changed significantly from the two old programs established by the Howard government of the Natural Heritage Trust and the national action plan for water and then to Caring for our Country.

One of the ongoing issues which remains a major shortfall in the regime is that board members are government appointments rather than being reflective of their communities. That is something which deserves further consideration, although I do note that the government has made the eminently sensible decision of appointing a former colleague, the Hon. Caroline Schaefer, as the chair of the Northern and Yorke Natural Resources Management Board. She will be an excellent presiding officer in that role. In general, there is a major disconnection between NRM decisions and local communities, and I think the classic example of that is the current situation with water allocation in the Mount Lofty Ranges.

I have mentioned that there is considerable disparity between the various levies within and between regions. I hope that is something to be further examined in the upcoming review. There are complications for local government, which I think was conned into agreeing to collect the levy. They now live to regret that decision because they have no control over the levy rate, yet it is published or part of what they collect from ratepayers.

As to governance issues, NRM boards, as I mentioned, are appointed by the state government under state statute, yet their funding is derived largely from local government through the federal government's programs. It is a structure whereby the accountability, funding and statutes are unaligned and therefore accountability is incongruous. So, there are many issues still to be resolved. I have received formal advice from two organisations, one being SAFF, and I will read its comments, as follows:

The definition of 'intensive farming'...should not be left to the decision of the individual NRM Boards. From SAFFs experience, some NRM officers do not have good agricultural/farming knowledge to be able to define what a standard farming practice is, or what may be a temporary farming practice due to drought, etc. The same farming practice may be described as intensive in one region and not in another, and may result in some farmers being restricted and others not.

e definition of 'residential premises'...should be defined in the NRM Act. The 'residential premises' understanding in urban areas is different to rural areas where private driveways can be 100s of metres long.

The SAFF does not support clause 5 where the Minister is now able to delegate powers in regard to NRM levies and funds. If this occurs there will be less scrutiny of levy rises.

SAFF strongly supports the proposed changes in clauses 6(1), 6(2), 7, 10(1), 10(2), 11(1) & (2) which will allow the Council and Boards to run more efficiently.

That relates to appointments. The comments continue:

While SAFF supports the changes of NRM group terms at clause 13 from 3 years to 4 years, SAFF only supports members being able to serve up to eight consecutive years as there is a need to promote change-over and input of new ideas.

In respect to clauses 17 and 18 which discusses regional NRM plans and water allocation plans, it is critical that economic and social impacts are assessed when new levies are raised, such as the potential water levy with the adoption of the Western Mount Lofty Ranges Water Allocation Plan.
Whilst SAFF supports changes proposed at clause 22(1) to bring South Australia into line with the National Water Initiative, it needs to be recognised that some Water Allocation Plans may need to be reviewed sooner if the current science is incomplete, if trigger points are reached or if there is a significant increase in some water affecting activities, eg plantation forestry. A review period of 10 years is way too long and unrealistic.

SAFF does not support clause 39 whereby water conservation measures will be established by Gazette notice rather than by regulation. Regulation provides the opportunity for debate, which is highly important for issues such as Environmental Protection Zones in the South-East.

We then have a submission from the South Australian Chamber of Mines and Energy, which believes that all water users for productive activities, including stock, should be liable to pay the NRM water levy. It also would like the funding model for NRM boards to be reviewed to address significant inequities in income generation between regions. All regions are expected to achieve improved environmental outcomes through the NRM legislation, state NRM plan and the State Strategic Plan. It states:

It is our view that some regions (for example, SA Arid Lands) are not appropriately nor sustainably funded to achieve government and regional objectives as a result of small population, rather than being based on resource management requirements. A more equitable distribution of funds is necessary.

I note that those issues are not contained in this bill. They also, in a letter they wrote to the minister in August last year, stated:

Although the resources industry is a legitimate land and water user, and makes a significant contribution to the objective of environmental legislation,...(SACOME) is not recognised as a peak body in the NRM Act nor has specific entitlement as other peak bodies within either Acts—

the other act it refers to is the Native Vegetation Act—

to nominate persons for selection by the Minister for membership on either the NVC or NRM Council...As an industry with invested interest in sustainable use and management of natural resources and obligations through various state legislation, the resources industry is a key stakeholder in the strategic management of natural resources in South Australia.

Going back to the specific issues of water rights, they say:

With the implementation of unbundling water rights across prescribed water areas over the period 2010-2014, the question arises whether section 127 (water affecting activities) will be applicable given the new Water Resource Works Approval...

They have expressed some further concerns that these measures may increase the bureaucracy of the application process for water usage. We would not be favourable to this additional regulatory burden.

I have already spoken to parliamentary counsel about some of the specific concerns we hold in relation to the provisions that are outlined in the bill, and that has resulted in parliamentary counsel drafting some 27 amendments on our behalf, which I will have placed on the file tomorrow, I hope. We will have a whole range of things, which I am sure the minister will deem outside the scope of this legislation, which relate to powers of authorised officers. So, I think we will have quite a number of amendments in this debate, and they may well take considerable time.

I will quickly outline what our concerns are. We are concerned about the Upper South-East Drainage Scheme being subject to prescription because we believe it is premature to allocate any new water prior to finalising existing water issues. Many members would be familiar with the USE scheme, with the drainage, which has considerably changed the outlook of the South-East, with significant volumes of water flowing out to sea.

I mentioned that SAFF opposed the definition of 'intensive farming' being placed in the act, and we agree that we will oppose that. The definition of 'curtilage' was placed in this act in 2004, and it is the only act, I understand, that defines 'residential premises'. The government is seeking to amend that so that it would return to the common law definition. SAFF opposes the common law definition because it believes that it revolves around the metropolitan definition, whereas curtilage on rural properties is often very different.

The delegation of minister's powers under chapter 5 is something that SAFF mentioned in its contribution to us. We agree that the government's amendments give too many powers to the department and that the powers should remain with the minister. I understand from the debate in the House of Assembly that the minister undertook to listen to the debate in the Legislative Council. In any case, we have amendments that will oppose that particular measure.

In relation to terms of the NRM regional council and boards and NRM groups, in the original debate in 2004, we amended successfully that those terms should be three years, and the government is seeking to amend that back up to four years. We have had a similar argument in relation to local government. I think the NRM system is finding it hard to get people to stand for those positions because four years is a long time for someone to commit to being a member of the board. I understand that they are able to stagger their terms, under the existing provisions of the legislation.

I will go back to the things we support; I have so far talked about the things we oppose. In relation to the casual vacancies on the NRM councils and boards and so forth, I think they are all sensible suggestions and enable the Governor, on advice from the minister, to fill casual vacancies of less than half of a full term without a full call for nominees. In relation to enabling the annual report of the NRM Council to be tabled separately from regional NRM boards, which is currently causing undue delay, we think that is a sensible approach. There is a requirement at the moment for groups to provide annual reports, which they already do through boards. That will be deleted, and we support that. As well as the minister being able to delegate powers, there are provisions to delegate the chief officer's powers, which we oppose.

Probably the most controversial aspect of this legislation is that it seeks to delete the self-incrimination provisions, which the government told us were based on crown law advice to do with EPA v Caltex New South Wales. However, members of the chamber may not be aware that clause 16 will delete section 72 of the act, which provides that a person can refuse to answer a question or refuse to provide documentation on the ground of self-discrimination. We do not think that should disappear from any statute, so we will oppose that vigorously.

There are provisions that broaden regional NRM plans beyond the scope of just their operations, which we support. There is a provision which requires that the basis for a proposed water levy be set out in a regional NRM plan and retain the requirement that a social impact statement be included in a regional NRM plan only when a new levy is proposed or when an increase is proposed that exceeds CPI, which is currently required annually. We support that.

There are some amendments that relate to what the government told us was compliance with the National Water Initiative, in that water allocation plans will need to include information about what water assets exist to contribute to environmental priorities, not how much is actually required. A lot of our members felt that this was one of the flaws in the draft Murray-Darling Basin guide that was released in the last couple of years. Indeed, the argument was: why would you set how much water is required for the environment in a water allocation plan, with the potential to ignore the social and economic issues? I think that was largely why the Murray-Darling plan received so much criticism.

Another set of clauses removes the need for regional boards to prepare concept statements for plans and water allocation plans, which apparently take some time to prepare but have limited benefit. The boards will still be required to prepare draft plans which seek community input, and the board can then amend the draft plan following consultation and prior to forwarding it to the minister. We support those provisions. There is a clause which states that the relevant Aboriginal people will be one of the groups who need to be formally consulted, which we support.

There is a requirement for review and amendment of NRM plans, which SAFF referred to, which will be increased from five to 10 years to comply with the National Water Initiative, which requires certainty over a 10-year cycle. We were told in our briefing that water plans can still be reviewed earlier on an as-needs basis. SAFF described the 10-year review period as being way too long and unrealistic. However, I would like some reassurance from the government as to how often they believe each region may need to review its plan.

The next amendment reduces the requirement that a copy of proposed amendments to NRM plans is required to be published in newspapers to a summary. In our briefing, we were told that some amendments to NRM plans can run to 50 pages, and I understand that it would be wise to reduce the amount of information they are obliged to publish. While I understand the sense of that, I think that summaries can be used to omit information, so we will recommend that it be an executive summary. We will also require that the full amendments are published on the department's website, with a link in the advertisement.

The next amendment changes the reference point in the financial year for increases in the levy over CPI from 30 September to 30 June. In our briefing, we were advised that this will speed up consultation by three months and enable councils to publish the rate, rather than wait another three months for the setting of the NRM levy, and we support that.

In regard to rating of land outside council areas: this changes the requirement that rateable land be subject to a levy, giving the Crown discretion. Only one levy may be applied against multiple pieces of rateable land and only one levy may be applied against a farming property. I understand that this amendment would make the NRM Act consistent with the Local Government Act. I will seek clarification from the government as to the impact of this on pastoral leaseholders. Parliamentary counsel's advice was that aggregating the rating of farm properties in out-of-council areas would led to a discount in most instances, but I would like a formal confirmation to that effect.

There is a clause that provides that water taken for roadworks will be excluded from the calculation of water taken. In our briefing, the government said that this specific clause had been at the request of the Local Government Association. My understanding is that the act currently allows that water taken for stock, domestic and firefighting purposes is excluded. I think the minister had agreed to look at this during the debate in the House of Assembly. We have had examples of negative impact on local landholders' bores with the Northern Expressway, as well as on the Yorke Peninsula, so I do not see why—given that roadworks are not an essential human need—they should receive the same status. I would like an explanation from the government as to why it thinks that is an appropriate thing to do; and if I am not happy with explanation we will oppose that provision.

There are some provisions that relate to drought or over-allocation penalties for the illegal taking of water, and parliamentary counsel's advice was that the act is currently unclear about how a penalty might be declared. So this clause is a clarification, by specifically stating that a person who has acted in contravention of a notice is a penalty that can be declared, and we support that provision.

The bill also seeks to extend the definition of degradation of land from environmental aspects to include productive capacity; that is, soil loss alone can be taken to constitute land degradation. The opposition is opposed to that on the ground that it does not believe that NRM officers are qualified to determine it.

Section 127 of the NRM Act, to which SACOME makes specific reference, outlines the rules regarding water usage in prescribed areas. The amendment, through this bill, adds the following:

The relevant authority may—
(a) require that separate applications be made;
(b) issue separate water management authorisations or permits,
with respect to each distinct activity or item of infrastructure within the ambit…

The government told us that this was a clarification that related to multiple bores, which applies mostly to mining. SACOME is quite clear that it is concerned that this will increase the bureaucracy of the application process for water usage, and we will oppose this provision.

There are also increased penalties for taking water from a prescribed area without authorisation, erection of a structure to capture water without authorisation, or taking water in contravention of an NRM plan in unprescribed areas. The current penalty for that, if you are a body corporate, is $70,000, plus the prescribed rate of $25 per kilolitre. The bill will increase that to $2.2 million. For a natural person, the current penalty is $35,000, plus the prescribed rate of $25 per kilolitre. This will build change that to $700,000.

The government says that these new provisions will bring penalties into line with New South Wales' laws and penalties under the Environment Protection Act. It was considered by the review in 2007 and, in fact, was rejected, pending a review of penalties. I will be opposing those provisions, because I think that they vastly increase the penalties for those breaches. I think that to compare people who may be monitored by the NRM Act with the Environment Protection Act is not right. More often than not, either the bodies corporate or the natural persons are farmers, and trying to compare them with corporations which may breach aspects of the Environment Protection Act I think is unfair.

Clause 32 of the bill clarifies permit provisions of section 135 of the NRM Act, and we support that. Clause 33 includes capping as a remedy for well rehabilitation, which we support. Clauses 34, 36 and 37 of the bill clarify that transfers of water licences for dams must match the conditions on the licence, and the penalties introduced for not so doing of $50,000 for a body corporate and $25,000 for a natural person we support.

Clause 35 of the bill clarifies that carryover provisions are legal. We support that. Clause 38 is a drafting error, so we support that. Clause 39 of the bill is to provide for water conservation measures to be introduced by gazettal rather than by regulation, as the government says, consistent with SA Water provisions. As I mentioned, SAFF opposes these provisions, as does the Liberal Party, because we believe that this will allow the minister new powers to make law without any parliamentary oversight or accountability.

Clauses 40 to 44 relate to pest species, plants and animals and so forth, and no increase in penalties is proposed for those particular matters. With those remarks, I indicate that we are largely in support of this legislation. We are disappointed that the government did not actually seek to broaden it to include issues which are really causing a lot of difficulties in an operational sense, particularly for landholders.

I am not sure of the total number of amendments I table will ultimately be, but it will be quite considerable. I think that this debate may take some time, but I look forward to it and I commend the debate to the house.

Debate adjourned on motion of Hon. D.W. Ridgway.