Major Projects Bill 2020
Ms WEBB (Nelson) – Mr President, today I listened to the Leader put the Government’s case for this bill, and I have listened to the contributions of other members and certainly appreciate very much hearing their thoughts on this.
I have also met with stakeholders and have attended departmental briefings on this bill and briefings provided by other stakeholder groups. I thank all those stakeholder groups and the departmental officials for their really generous time and approach to continuing to provide materials for us to add to our understanding of this bill and to respond to things that have been presented with in other circumstances.
I have also received quite a high number of communications from constituents on this bill and from Tasmanians outside my electorate. I must say none of those communications I have directly received from the Tasmanian public has been in support of this bill. All of them expressed concern, anger at times and anxiety. That is probably no surprise when we find this complex bill before us and to some extent a controversial one, given what we can observe in the Tasmanian community in terms of quite extensive response.
I am not a planning expert. I do not intend to pretend I am, but that is not the sole and exclusive consideration we are to bring to bear here when considering this bill. It is our role in this place to evaluate proposed legislation against a whole range of criteria to undertake our function of review.
We are certainly to consider fundamental democratic principles such as good governance, transparency and accountability, consistency, fairness and due process. Therefore, while it is incumbent upon me to listen to those with planning expertise, it is equally important to listen to those potentially affected.
In relation to this bill I have heard it identified that a planning process which allows for projects of a certain scale and complexity to be dealt with under an independent non-political assessment with concurrent consideration by regulators and an early indication of a reasonable prospect of success would provide proponents with a process that is shorter, simpler and involves less financial risk. It would give them more confidence.
I accept that such a process is one that proponents would find attractive in this state. I also accept it could potentially hold value for our state and for other stakeholders and the community.
The Projects of Regional Significance, as many of us have noted, has been in place since 2009 and was put in place to provide a similar such process. What we have seen play out there, as has been noted, is that while it was due to be reviewed after five years, it did not actually eventuate as a functional process, in that it was never used. As a result, it is generally regarded to be a failure. I am led to believe and would agree with that assessment given its complete lack of use.
Criteria for the legislated review of PORS are mostly redundant as we discussed in a briefing earlier today, because the process was never used, most of the criteria that are in the legislation have never occurred in order to be reviewed. There is one criterion in that legislated review that would remain relevant however and that is (d) and it says –
Any other matters relevant to the effect of this division on providing an efficient and effective planning approval process in Tasmania.
That is quite a broad invitation to review not just the efficient and effective use of PORS, but the efficient and effective planning approval process in Tasmania in the context of PORS, the review that it is legislated to be reviewed as part of.
I note the member for Hobart’s comments indicated there was no public consultation process, no public report of a review of PORS shared in the public domain and no indication that a review and analysis perhaps could have been conducted in a limited way but certainly a purposeful way in relation to that criteria (d) in the legislation. There is none in existence. It makes me wonder what would a formal review of PORS have delivered to us? The principles it sought to give effect to, the efficient and effective planning approval process in Tasmania and what could be added to that, and the failure of PORS to result in the expected outcomes when it was first put forward. In light of thinking about what a review might have provided, there are three basic sets of questions a government should be asking at the earliest opportunity when beginning the development process for a new planning scheme such as this.
The questions I think important are: What do proponents need? What are their priorities and concerns? What do communities need? What are their priorities and concerns? What does good governance require when we consider this new planning matter or process?
These questions should be asked at the outset of the development of the new planning process and that learning and understanding would then form the foundation from which you would embark and engage in future work and development.
Engagement with all stakeholders, including the community, would be required in order to answer those three sets of questions. Answering the questions would provide the opportunity for consideration, analysis and appropriate balancing of the full range of needs, priorities and concerns. It would serve to ensure buy-in from all stakeholders and confidence in the process of development that would grow from it.
It would be the first, and I think most important, step in developing public confidence in and a social licence for the process under development that would become ultimately part of the planning scheme.
When we had the chance to engage in this kind of thorough and inclusive process in the contemplation of a review of PORS and then the anticipation of a creation of a new process, what did the Government actually do? The Government asked that first set of questions: what do proponents need, what are their priorities and concerns? I am sure the answers to those questions were readily provided to the Government. Absolutely appropriately.
When and how at that earliest opportunity did the Government ask the equally important second question: what do communities need, what are their priorities and concerns? That question was never put to the Tasmanian community at that earliest opportunity regarding the development of this new process. It was confirmed to us in briefings that there were no community stakeholders engaged by the Government in the initial stage of contemplating the creation of this new process from the ashes of the failed PORS process.
The neglect of community input and engagement at that point was wrong. It was a mistake. The community deserved better at that time. Sadly, the failure to give appropriate involvement to the community at that time set us up to be encountering some of the issues that are now being expressed today and that we must deal with in the scrutiny and review of this bill.
Additionally, in the absence of that second question being asked and answered, in failing to include purposeful consideration of communities at that initial stage, we also curtailed, in some measure, effectively answering the third question: what does good governance require? Community input would have been fundamental in answering that third question too.
A great deal of consideration has been given to good governance in a process that has ensued since and to good effect in many ways in what we see presented here today. Because we did not include a lens of community we would have gained in asking those questions at the earliest opportunity we have some missing gaps and what those matters we may be dealing in the next stage of things have their origin in that.
Community was not brought into this process until a draft bill was in place. And what effect does this have? Introducing community at that point when there is already something presented to them?
It tells the community members they are not central stakeholders in their own state planning scheme. It sets up the opportunity for an adversarial approach.
That was the message that was sent to community at that time – that they are not central to the earliest consideration in developing new matters in the planning scheme – is an unfortunate message and sets up an adversarial approach.
In the development of this bill, the Government failed in creating its own social licence for the new and significant process it sought to create. What a shame and how unnecessary. As we make our way through consideration of this bill and potentially into the next stage, I hope we can do work that helps to redress that to some extent. I acknowledge it would have been more appropriate and perhaps easier if we did not have to do that, if it had been done correctly and inclusively in the first place.
There are interesting parallels here in the shortfalls of this process used to develop the major projects process itself and in some of the shortfall that people have identified in the major projects process. What the Government did in relation to not including community at the earliest opportunity, presenting community then at a slightly later stage with a completed entity to respond to in some sense, in that there was already a bill then as the first thing to respond to and then not providing necessarily fair ways for that to be reviewed and assessed in a way that really communities felt included. There was a perception of not being included. This mimics some of the concerns people actually have for the process presented in the bill that community is not being included at the earliest opportunity, that in being presented with something that looks almost like a completed product. They are put into an adversarial role unnecessarily as their first involvement and there is not necessarily a fair and transparent opportunity, or there is a perception there is not, for the community members. There is an interesting parallel there.
I will speak briefly about some of the concerns expressed to us broadly, many of us, by many community members about this bill and by other stakeholders. The context of this bill has been talked about by some other members. It is a crowded space at the moment. At the same time this bill has been in gestation, we have also had a new state-wide planning scheme being created – still not entirely bedded down. We have a continuing ongoing review of the Tasmanian Planning Commission and note, as many others have, progress has stalled on electoral donation reform which, while not immediately pertinent to this bill, is tangentially pertinent. This is a matter we will be discussing more in time to come.
Mr Valentine – The planning policies have not been developed either.
Ms WEBB – Indeed. That is a further part of this crowded area of many unresolved matters and on top of that we are in a middle of a pandemic, which presents many of its own problems as others have noted.
Another area of concern expressed is about what could be included, what could be drawn into, in this major projects process as presented in this bill. It has been put to me this bill could see quite controversial proposals that have already been through, for instance, the council planning process and been rejected or those that were approved by council but have had their decision overturned through an appeal process or all those currently prohibited developments within a planning scheme, could see those kinds of examples declared and assessed under this legislation. Many of us will have heard from a range of community stakeholders who are extremely alarmed on this point. They cite examples such as Cambria Green, the large-scale complex outside Swansea, arguing that such a project could be considered, and despite a rezoning application for the proponent’s land having been rejected by the Tasmanian Planning Commission, it could still be submitted under this bill to be assessed.
Similarly, concerns for the integrity of our cityscapes and built heritage in Hobart and Launceston have been raised. We have seen large developers putting forward quite vast, out of scale and inappropriate plans that will potentially dwarf our heritage-rich spaces and our cultural aesthetics. We see what happens in local communities when those sorts of proposals are put forward under circumstances now. I understand why people who feel alarmed at those prospects feel that there may be an easier pathway for some of those projects to be considered under this bill, and are concerned about that.
Some additions have been made and potentially the community are not as up to date with those additions. Some consideration must be given to special arrangements in areas in local communities. Consideration can be given to those. I think that is a really positive improvement that was made in the process of the bill.
The community’s confidence has already been shaken with recent changes, which many perceive to have undermined the integrity of Tasmania’s planning system, including the new planning scheme’s apparent, in some people’s eyes, downgrading of the protection of local character and values. Some have put to us that they have seen that demonstrated through projects such as Kangaroo Bay. I am not commenting on the merits or otherwise of that, but I did note, after hearing concerns raised from the public, we have also heard from an industry stakeholder that that would be an example of a project that could be considered under this major projects process. While that was put to us, it is not confirmed to me that it could be. But if there is an industry stakeholder who believes that it could be, then that is an interesting thing to note.
Concerns based on lived experience in our communities make them worried that this proposed bill may bring eventualities in their communities that they find distressing. Despite protestations from the Government that this is not a fast-tracked legislation, the bill certainly appears to shift the emphasis for larger scale projects towards approvals rather than assessment. There are potentially some straightforward adjustments that do not interrupt the process of the bill, but would alleviate that perception. It probably is a perception. If there is a way we could alleviate the perception effectively without interrupting the intent and the process that is in the bill, we should consider this closely. I hope all members, and the Government, will be open to considering that.
A consequence of this bill, given community consternation and concern, could lead to the erosion of the building of a social licence for any of the projects that use the process. It is a shame and awkward if we have created a process that already has built-in opposition to what may be subject to it. We may be able to again alleviate that outcome to some extent with some minor amendments that we may consider in the next stage that would really assist in helping calm community, while not interrupting the intent and the process.
A further concern was on the lack of merit appeals rights. Others have spoken about that in their contributions. It sounds like it will be a matter that we discuss in detail in the Committee stage. It has been a matter of high concern for the community. I will mention briefly that the principle of merit appeals is right, it is elemental in the idea of a functioning democracy. I will speak more about that when we consider potential amendments.
A key concern with this bill is political influence. I take on face value the pride expressed that this bill, by assertion from the department, has a high level of transparency compared to similar examples of planning schemes around the nation. It has a high level of transparency and arm’s length operation from political decision-makers. I applaud that. In many measures it does and pride in that is well placed.
It is part of the Government’s narrative around this bill that it takes the politics out of planning. In some ways that is true. I also believe that in making that claim the Government is downplaying the role the minister still plays in the process. That is still a matter for us to contemplate further. Characterising the power to declare a project at the outset and therefore bring it into this process ‘simply provides for the proponent to enter the process’, and implying that is a simple matter and it is not of political consequence is misleading. That power to declare a project has to be recognised for what it is. That is, it is significant and it sits with a political player in the process.
The opportunity for the minister to specify particular experience or qualifications in one member of the panel also has the potential to be significant. I fully appreciate that this is not the minister appointing a member of the panel. We would be quite appalled if there was that power. Even this power to specify a particular experience or qualification in a member of the panel has the potential to be significant. It can be quite narrow. It could point towards either a small handful or perhaps even one person in a state like Tasmania. While the minister is not appointing that person directly, in defining the qualifications and experience in a particular way, the minister could certainly point towards very particular people. Again, the perception of that is perhaps more problematic than the real risk it presents.
A case has not been made as to why it is necessary or valuable for the minister to have that power and why over and above the fact that the TPC could make this determination independently from any political influence at all, this should be an essential power for the minister to hold in this process. If the case has not been made that it is necessary and we know the independent entity involved, the TPC, could quite well undertake that determination of particular qualifications and experience required, why would we have something there that has that perception, if not tangible risk of political influence? We will likely discuss this in more detail in relation to an amendment.
A further concern that I am going to touch on is around so-called safeguards that are in the bill. The Government says there are sufficient safeguards in the bill to protect the public interest. We had a serious anomaly at the beginning surrounding the failure to undertake a genuine five-year review of PORS. Granted, it could not have been the full review that was specified in the legislation because of the inapplicability of a number of the criteria, but at least one broad and significant criteria could have been the basis of that review.
When that process was introduced into the state planning system in 2009, the statutory five-year review was inserted at that time as a safeguard. A safeguard that in the end has proven ineffectual from the Tasmanian community’s stand point, because it did not result in delivery the review it mandated.
This is a breakdown of good governance. It is a breakdown of a safeguard and it is oversights like these, inadvertent or deliberate, which contribute to heightened community concern, distrust and the erosion of public confidence. It also means people are understandably suspicious when they are told blithely there are sufficient safeguards to prevent politicisation of the planning system or to prevent fast-tracking of projects proposed by corporate donors or supporters of whoever is the Government of the day.
People understandably would hold suspicions, may feel distrustful of promised safeguards if we have a history of those safeguards not delivering from the community’s perspective. I am going to mention the complexity of this bill as a matter of concern. Not because it should not be complex in delivering what it is going to deliver ultimately, to us as a state, but in terms of the fact we are going to be dealing with it in a complex way here because of the quantum and nature of concerns and issues that remain to be resolved and discussed at this stage of the process because of a failure to effectively address those things by an inclusive and appropriate process earlier on.
I understand other members have circulated proposed amendments and I have circulated a suite of amendments for consideration during the committee stage, should we get there. I intend to address all those amendments in detail when we are there in due course rather than to speak on detail to any more of them here.
In particular, I am interested in hearing other members’ views and ideas via amendments on how to protect the community’s rights and the capacity to participate in the process of this major project’s endeavour including, potentially, merit‑based appeals rights, providing clarity over the permit criteria and ensuring public confidence in the non‑politicisation and transparency of the process.
I particularly mention my gratitude to OPC for the assistance in drafting the suite of amendments I intend to bring. The responsiveness and alacrity with which they have been drafted in the past 36 hours or so have been really appreciated and I am very grateful for their professionalism and quality of the work.
To conclude, two threshold tests against which it is important to assess this bill are: First, how does the proposed bill measure against the fundamental democratic touchstone principles of good governance, transparency and accountability, fairness and due process? Second, do the proposed changes in this bill invest in strengthening social licence for any project that goes through the proposed new process? Those two questions still have elements that need to be answered and I would hope we can potentially provide some answers as we further discussions here.
I contend this bill falls short on both those accounts to some extent and, in doing so, instead of being a valuable and well‑respected addition undoubtedly in the community’s mind to our planning scheme. It risks contributing to community anxiety and division and undermining the social licence for future projects. I suggest the last thing the planning environment in this state needs is greater inflammation of community fear and anger at being taken for granted and having the interest of developers put ahead of the interests of the community.
These systemic failures, to some extent, at earlier stages of this process in good governance in transparency and fairness in inclusion would potentially be enshrined in this bill as it currently stands and that would ensure that proponents accessing the process would be at risk of failing to secure a social licence for their project.
I think we can engage in effective and helpful work in this Chamber in the passage of this bill. Some of the consternation and concerns that have failed to be allayed in the community across an extensive period of time that this has been developed can be, to some extent, ameliorated in some straightforward ways through some straightforward amendments that will not impact on the intent and the veracity of the process as it has been conceptualised by the Government.
They will be important in terms of public perception and in rebuilding a sense of social licence and community and public confidence in this bill as it passes through our Chamber and become something that is given effect to in our community.
I look forward to us delivering on that for the Tasmanian community and helping to provide that more positive outcome that may otherwise have been achieved.
