The TCT strongly endorses the intent of the proposed amendments with the exception of those dealing with finfish farming (see below).
We strongly support the intent or rationale for provisions that will:
- more effectively regulate clean fill;
- make environmental monitoring data publically available;
- create criteria for non-assessment of proposals;
- create offences for conducting a level 2 activity without authorization;
- address limitations of authorised officer emergency powers;
- streamlining processes for creating environmental protection policies;
- changes to schedule 2 of EMPCA in regard to regulation of waste depots, land disposal of biosolids and aquaculture feed works.
We wish to provide the following more detailed comments in regard to some of these proposed amendments.
More effectively regulate clean fill
The TCT strongly supports the proposal to more effectively regulate clean fill as it will generally make it more difficult to use many materials as clean fill and this will, as stated in the explanatory paper, provide an incentive for many types of materials to be recycled.
The State Government’s draft Waste Action Plan is currently out for public comment and it makes the point that very little construction and demolition waste is currently reused or recycled. The EPA’s proposed changes regarding clean fill will make a very significant contribution toward increasing the reuse and recycling of construction and demolition waste as well as other materials.
Making environmental monitoring data publically available
The failure to make environmental monitoring data publically available has been a matter that has attracted considerable community criticism, in particular in regard to monitoring and regulation of fin fish farms. While we have some concerns that the decision to release data is subject to the discretion of the EPA Director, this is a very positive proposal that will assist the community and non-government scientists to assess how a particular operation is performing and provide informed advice to operators and the EPA.
Create offences for conducting a level 2 activity without authorization
The TCT made a complaint to both the Sorell Council and the EPA in January 2019 in regard to the Fleximore sand mine that has been operating for many years at Penna in Southern Tasmania. In the letters to both organizations, I outlined that the operator’s environmental consultant admitted in a document sent to the Sorell Council that the proponent had been removing sand at quantities four times greater than what was allowed under their existing permit.
The EPA responded to my complaint by saying that the mine was a level 2 operation and they did not have jurisdiction and could not prosecute. The Sorell Council responded to say that they did not intend to prosecute because the operator had applied to the council for a permit to authorize allow them to remove the quantity of sand that they had been removing. The Council’s response was very poor because the mine had been exceeding its permit requirements by an extremely large margin and failing to prosecute may only encourage the operator to exceed the new permit limit.
This is a perfect case study to justify the proposal to make it an offense to conduct a level 2 activity without authorization and if it was in place earlier this year then the EPA could have prosecuted the Fleximore mine.
Other proposed amendments
We would have preferred to have been able to obtain legal advice regarding the proposed amendments:
- create criteria for non-assessment of proposals;
- limitations of authorized officer emergency power; and
- streamlining processes for creating environmental protection policies;
While the intentions seem admirable we cannot without advice know whether the proposed amendments are the preferred response.
Proposed amendments regard fin fish farming
In regard to the proposed amendments to Environmental Management and Pollution Control Act, Living Marine Resources Management Act and Marine Farming Planning Act in regard to fin fish farming we are not able, with the limited time that has been provided, to provide informed responses to the myriad proposed changes. We have sort legal advice from the Environmental Defenders Officer to help us to understand and respond to each proposed change but the EDO has not been able to prepare advice for us in the limited time available. While the EDO will make a submission I note that they requested an extension of time. Also the TCT has not been able to read and fully consider their submission in determining our response to each proposed amendment.
The TCT strongly recommends that an additional period of time is provided for the public to make submissions.
To emphasize how difficult it has been to prepare a submission without legal advice we offer the following preliminary responses.
We have read the proposed Amendments Bill and Explanatory Paper. We counted about 70 substantive changes to the three acts referred to above that relate to fin fish farming. Our view is that perhaps one third are clearly intended to achieve a positive change to the respective acts. But without legal advice we cannot know for sure that we have read and understood the proposed amendments correctly and, if so, that the proposed amendment could not be better constructed or worded to achieve its intended purpose.
The remaining two thirds of the proposed amendments may or may not achieve an outcome that we can support but we simply cannot understand the proposed changes without legal advice.
The purpose of each provision is explained in the Explanatory Paper. But, having read each one, it is not clear to a person not trained in the law that the interpretation provided is what I would agree with. In a majority of cases it is stated that the proposed amendment corrects an error, over sight or omission in existing legislation but the effect of the change is not self evidentially positive.
The Explanatory Paper goes further in most cases to explain the proposed amendments in plain English but without legal training it is not generally possible to know if these changes will achieve positive outcomes, procedurally or in terms regulation of fin fish farm management. Again it is not possible to know if the proposed amendment is the best possible response to the problem identified or if it could be improved with revised wording.
Yours sincerely,
Peter McGlone
Director