There are so many examples available of how the Gillard government has fallen over its own feet that another is surely superfluous, but, within the soap opera that is now coal seam gas development, there lurks one that needs outing for the larger benefit of good policymaking in Australia.
The details of it can be found within the Senate standing committee on environment and communications, which is undertaking a review of the government’s bid to amend the Environment Protection & Biodiversity Conservation Act in what is a blatant attempt to woo voters in New South Wales in particular and more generally to shore up its green credentials in marginal seats.
Submissions to the senators come under two headings: the majority from anti-CSG types, whose message is essentially ‘anything that blocks coal seam gas development is a jolly good thing and more strength to your elbow’, and those from the business community, reacting with disbelief to the way environment minister Tony Burke has behaved.
Julia Gillard can’t escape personal responsibility either because Burke’s charge towards enshrining the CSG attack manoeuvre in law has needed her to exempt the proposals from the government’s regulatory impact statement requirements for legislation.
The shorthand for Burke’s EPBC amendments is that they give him powers over the development of CSG and coal mining by focusing on their impact on water resources.
The list of things wrong with this ‘whatever it takes’ approach is not short.
Perhaps most damningly for Burke, one of the major stakeholders unhappy about his behaviour is the National Farmers Federation – the peak representative of the community he claims to be protecting.
While it needs saying that the New South Wales farmers’ lobby group supports the intervention – the debate in the state has well and truly passed the point of polarisation and descended in to Animal Farm characterisation of who is good and bad – the NFF’s reasons for damning Burke’s proposals are strong and clear.
For a start, what he’s doing runs clear across the 2011 agreement between jurisdictions under the COAG umbrella to ensure that science and expert advice underpins environmental approval processes. “There is nothing to suggest this arrangement has failed,” says the NFF.
And it adds: “While we are aware of a difference of opinion (between Canberra and the government in Sydney), this does not warrant the introduction of legislation that will affect all of Australia, including increased regulation and its associated costs, confusion and duplication.”
The NFF also finds no solace in the federal government saying that the amending bill does not target agriculture and its impact on water resources through extraction of groundwater for stock and domestic water supply. There have been calls already, notably by the Greens, to expand this trigger for intervention beyond CSG and coal, it points out.
The Farmers Federation is also alarmed at the thought that targeting an industry rather than an issue opens the door for later action in other area, for example land clearing or the use of agricultural chemicals and fertilisers.
“While we recognise the genuine concerns of farmers in affected areas, the NFF believes that using the water trigger presents an unreasonable future risk to all farmers,” its submission to the Senate committee says.
The British-owned QGC, developers of a $20 billion LNG project at Gladstone, play the farming card in their submission, too. All of mining accounts for just 4 per cent of water use in Australia, they point out, and agriculture accounts for 54 per cent, so why is it excluded?
As much as anything, the industry reactions to Burke’s law are based on his contempt for consultative process – to which the Gillard government has given so much lip service in its stumbling reign.
“There is simply no justification for rushing through significant legislative reforms without prior consultation or a regulatory impact statement,” says the Australian Coal Association.
The Minerals Council of Australia adds: “Despite the significance of the proposed amendments, there has been a lack of engagement with key stakeholders, including the scientific community and government departments responsible for its implementations.
“The absence of a regulatory impact statement is indicative that this is driven by short-term imperatives rather than sound policy development.”
The Business Council of Australia derides Burke’s law as “fundamentally bad, born of poor process” and accuses the Gillard government of failing to meet its regulation-making commitment to business agreed a year ago.
In that compact, the government agreed to “engage early, engage genuinely and to consult at each stage of a reform process.”
The BCA says the government has failed to clearly identify or measure the risk Burke seeks to address.
The amendments to the EPBC Act, it points out, have been introduced to parliament in a way that means “the community can have no confidence that the regulation proposed is the most effective policy lever to use.”
The Australian Petroleum Production & Exploration Association goes further.
The original act, it says, was drafted to increase co-operation on environmental approvals between Canberra and the States.
The amending legislation is “contrary to good environmental, economic and social policy.”
APPEA member AGL Energy adds in its submission that a (political) response to community concern should not be the basis for significant policy change in an area like this in the absence of “robust, verifiable evidence to support community sentiment”.
The Gillard government, AGL notes, has not demonstrated any deficiencies or weaknesses in the current environmental approvals regime nor demonstrated how Burke’s law will strengthen them to lead to a superior outcome.
The Association of Mining & Exploration Companies adds that the point that coal seam gas and coal mining are regional and geologically-specific issues, but Burke’s law has national implications which could trap other industries in its web.
Tony Burke’s response to journalists about industry criticism of his move has been to say “If they honestly believe that the current processes have captured community confidence, then they have been living under a rock.”
To which the obvious retort is that, if he thinks intervention of this kind will build business confidence and look after the long-term economic interests of the greater community, then he has his head in the sand.