Speech in support of the Greens Mining (Community Protection) Amendment Bill 2012, introduced by Giz Watson MLC

HON ROBIN CHAPPLE(Mining and Pastoral)[11.00 am]: I rise today to speak in support of my colleague’s Mining (Community Protection) Amendment Bill 2012. I would like to deal with four aspects. I will touch on much of what has been said already. I wish to deal with mining issues and the Mining Act, local government and governance in general, planning, and then the issue that has been raised by Hon Jon Ford about federal, state and local government relationships. I will start by dealing with the Mining Act as it stands. In 1978 the Mining Act was introduced into both houses of Parliament. When I read the debates that occurred in 1978, I noted that a young gentleman in this chamber called Mr Moore interjected during the debate. It is interesting to identify how long some people have been around. The bill was introduced as a result of the 1970 mining inquiry. The premise was that the Mining Act would override the authority of local government, planning and other issues. I want to read a couple of bits and pieces from the debates in both the other place and this place to give current members some context for what was identified and proposed by that legislation when it was introduced. On 24 August 1978, Mr Mensaros, the member for Floreat and Minister for Mines stated —

Clauses have been included to prevent other governments from obtaining control of mining tenements in Western Australia and to ensure that while due consideration is given to town planning schemes and local government by-laws, these will not statutorily prohibit prospecting and mining authorised under this Act.

He went on to say that it was designed to meet the needs of modern prospecting and mining, while at the same time providing adequate protection for other land uses and the environment generally. This house had one of its longest sittings because it passed the bill in one day. It went through the committee stage in one day. My understanding is that the debate started at about 10 o’clock and finished at six o’clock the following morning, as was done in the good old days, so to speak. A lot of comment was made by the opposition about the bill, and I will touch on some of those comments shortly. Mr Mensaros went on to say —

Also of note is the provision in clause 120 to ensure that while due account will be taken of town planning schemes and local government by-laws, these shall not prohibit the granting of mining tenements or veto mining duly authorised under this Act. Provision is made, however, for consultation, where necessary, with the Minister for Urban Development and Town Planning before lease applications are dealt with.

The idea then was that there would be consultation with the various ministers before leases were granted. That is not the case now. He continued —

Should that Minister not consent in all practical sense the final decision —

As Hon Jon Ford has already attested to —

is left with Cabinet.

Obviously, at that stage, the Chamber of Mines wanted the bill to go a lot further and, basically, no other ministers to be involved in the process. But Mr Mensaros identified that he had not acquiesced to the Chamber of Mines. He said —

The Chamber of Mines said the same thing; it was something it could live with. It said, “We are not robber barons any more; we cannot be. We have to take other people into consideration.

That is lovely terminology—“We are not robber barons any more”. One sometimes wonders. It is interesting to note the debate that went on in the other place. Mr Skidmore said —

I want to clear up any misconception the Minister —

That is, Minister Mensaros —

may have about any statements I may have made. He claimed I have now switched course, and now accept the fact the Opposition has misled people into believing it would support the repeal of the old Act.

Before I go any further, I want to explain that the old act had been in existence for 74 years prior to the change in 1978. The old act had given local authorities the power of veto. The 1978 legislation took away that position. He went on to say —

Of course, the Minister is quite incorrect.

What I said was that I objected to this new legislation having the overriding authority over any other Act. We have already decided it will have overriding authority over the Local Government Act, the Town Planning and Development Act and the Land Act.

I asked the Minister whether the Environmental Protection Act would have authority over the new Mining Act and he replied that it would. There is no inconsistency in what I have said. The Local Government Act, the Town Planning and Development Act and the Land Act should stand supreme, and they do not. The Minister can now sit back in his chair and think about drawing another red herring across the trail.

It was at one stage the Labor Party’s view that other acts should have primacy over the Mining Act. When the bill came to the Legislative Council—that is where I noted a young gentleman called Mr Moore being involved in the debate in an early period—quite clearly the debate that occurred referred to the right of appeal. The opposition put forward the notion that such a right of appeal existed under the fisheries act, the Land Tax Assessment Act, the Local Government Act, the Metropolitan Water Supply, Sewerage, and Drainage Act, the Motor Vehicle Drivers Instructors Act and the Town Planning and Development Act, and that those provisions should apply to the Mining Act 1978. It was quite clear in the debate about the Mining Act that there was a divergence of opinions in both chambers about what should occur and which legislative regime should have primacy. So we are here with the current Mining Act as it exists, which seems to have been flawed for quite some considerable time. I believe that the proposed amendments that my colleague Hon Giz Watson has made will actually fix up a longstanding debate about decision-making.

I want to deal with the issue of planning. I turn to my colleague Hon Lynn MacLaren who deals with planning in the main, but I will steal her thunder! We know in the past that there have been some planning decisions in this state that have caused some issues, and I will refer to the Shire of Chapman Valley. The Shire of Chapman Valley a number of years ago, in July 1999, sought to pursue its regional plan to prohibit the transportation, passage, use and development of nuclear facilities in its town. It was the minister of the day, Mr Kierath, who did not allow the local authority to make that planning decision. A report in The West Australian states —

PLANNING Minister Graham Kierath has vetoed a bid by a Mid-West shire to declare itself nuclear-free.

Mr Kierath told the Chapman Valley Shire Council it did not have the power to amend its town planning scheme to ban uranium mining, treatment, storage or transportation.

Hon Michael Mischin: It didn’t have the power, so it wasn’t discretionary.

Hon ROBIN CHAPPLE: It did have the power, because later on the then Minister for Planning and Infrastructure, Alannah MacTiernan, as a result of legal advice from Minter Ellison, identified that the shire did have the legal right to do so. I will read in the Minter Ellison advice shortly so that the member can be more in tune with some of the legal advice that has been given in this matter.

The council then sought legal advice from Minter Ellison in relation to the development of amendment 22 to its town planning scheme 1. Minter Ellison basically went on to identify that notwithstanding the issue, quite clearly town planning schemes did have the right to establish a determination that they could, within their planning and town development areas, actually make rules and regulations pertaining to noxious industries or to industries that were perceived to be noxious industries. The amendment was determined to be not inconsistent with any other legislation. The advice states, according to my notes —

In our view, the reasons that follow that legislation referred to by the Western Australian Planning Commission in no way prevents the making of an amendment such as proposed Amendment No. 22 to the Scheme. In fact, we conducted a wider search of State and Commonwealth legislation and could find no legislation which could be construed so as to prevent the making of proposed Amendment No. 22 on the grounds of inconsistency.

Interestingly enough, that advice was provided on 14 June 1999. It therefore sat in limbo for quite a while until the government changed. Then I have to congratulate the government when it changed, because the incoming Labor government under planning minister Alannah MacTiernan reviewed the Minter Ellison advice to the department and the minister concluded that in fact the advice was correct. I quote from The West Australian of Saturday, 1 December 2001 —

THE Shire of Chapman Valley, near Geraldton, has been given permission to declare itself a nuclear free-zone by the State Government.

Planning Minister Alannah MacTiernan made the announcement in Parliament on Thursday, possibly paving the way for other local councils to declare themselves nuclear-free.

Hon Michael Mischin: If they declared themselves solar power panel–free because they were in sight of your views, would you be supporting that?

Hon ROBIN CHAPPLE: The issue is that I am not talking about the nature of the issue, although I will touch on that in a minute, so if the member just waits —

Hon Michael Mischin: It is something relevant to the bill, I take it.

Hon ROBIN CHAPPLE: It will be relevant to the bill, yes.

The minister went on to say that it paved the way for other shires to do the same thing. When we looked at the advice provided by Minter Ellison, it was interesting to note that the advice does not actually deal with the nuclear-free issue; it deals with the issue of a local government’s ability to determine what can or cannot happen in its local area. That is an important point to make. There was a view quite clearly back in 2001 that local government did have some authority.

That takes me to the next point I want to touch on; that is, the issue referred to by Hon Jon Ford that local governments come and go. I seem to remember that in fact federal governments and state governments come and go as well. Very early on in the piece when there is a new government in this place we usually spend a lot of time removing legislation that the previous government put in place. It does not matter whether it is a Liberal government or a Labor government, all we seem to do in this place is tidy up legislation to suit the government’s own political agenda—that is exactly the same as what local government does. The ordinary people of Western Australia elect members to local government; the ordinary people of Western Australia elect members to this place; the ordinary people of Australia elect members to federal government; and they come and go and change their position. Therefore, to point to local government as being some sort of basket case because it changes its view from time to time is disingenuous. We all change our view from time to time.

Hon Michael Mischin: That is not the point.

Hon ROBIN CHAPPLE: It is very much the point, and I will come to that in a moment.

I now turn to the inaugural speech of Senator Dean Smith, who was chosen by the Parliament of Western Australia on 2 May 2012 under section 15 of the Commonwealth of Australia Constitution Act to represent the state in the Senate. He entered the Senate following the vacancy left by the death of Senator Judith Adams. I think there is a sombre moment in that: Senator Judith Adams worked very well and long and hard for the interests of Western Australia.

Members: Hear, hear!

Hon ROBIN CHAPPLE: In his first speech on Monday, 18 June 2012, Senator Dean Smith said —

My first passion is Australian federalism. My home state is vast. Its people and priorities are broad and not easily understood by those living in faraway communities in very different circumstances.

That is much the same case that the people of Margaret River have with the jurisdiction here in Perth. He continues —

I believe in decentralised decision making, in diffuse political power, in allowing people to govern their own destinies.

He used that example in the sense that Western Australia, the state Parliament, should be the master of its own destiny, rather than let itself be overruled by the federal government. I would suggest that there is a parallel there in that local government is for the people by the people at a very local level —

Hon Michael Mischin: What are you talking about, for the people by the people? It’s not the United States Constitution. They are a creature of state Parliament. 

Hon ROBIN CHAPPLE: I am going to come to that. Hon Michael Mischin keeps on jumping in at the most inappropriate moment. Let me finish. My view, the Greens’ view and the view of the current federal government is that all levels of government have equal rights. As we are seeing with the proposed referendum coming up in the federal arena, local government should be a constitutionalised part of the government process of Australia.

Hon Michael Mischin: Why?

Hon ROBIN CHAPPLE: Because they represent people at a local level.

Hon Michael Mischin: What, with 20 per cent of voters voting in local government elections?

Hon ROBIN CHAPPLE: The very points that your own senator has just made.

Hon Michael Mischin: Don’t take it out of context.

Hon Lynn MacLaren: What did he say?

Hon ROBIN CHAPPLE: I repeat what he said —

I believe in decentralised decision making, in diffuse political power …

Hon Michael Mischin: Yes.

Hon ROBIN CHAPPLE: I thank the member; he agrees.

Hon Michael Mischin: What’s that got to do with recognising local government in the federal Constitution?

Hon ROBIN CHAPPLE: It is certainly about making sure that regional decision making —

Hon Michael Mischin: You’re talking about apples and oranges; they are totally different things. None of it has got anything to do with this bill anyway.

Hon ROBIN CHAPPLE: Yes, it has—a lot. I will come back to that.

Hon Michael Mischin: The discretion is with the minister and not the —

Hon ROBIN CHAPPLE: Hon Michael Mischin can keep interjecting all he likes.

The DEPUTY PRESIDENT(Hon Col Holt): Order, members! I think the member on his feet should probably look at me and direct his conversation to me if he wants to continue without interjection.

Hon ROBIN CHAPPLE: Thank you very much, Mr Deputy President. I commend the letter that we have just received from the President on that very matter. Taking that to heart, I will address the Chair.

The next point I really wanted to touch on was—I have been thrown—the recent decision in the Mining Warden’s court on the Darling Range issue. I refer to the decision before the Warden’s Court in Manjimup in relation to exploration leases 70/3979, 70/3980 and 70/3981. The decision is not inconsistent with what my honourable colleague Hon Giz Watson put forward in her bill; that is, it allows individuals to, in this case, use the Warden’s Court to prevent the issue of bauxite mining within the area of their immediate concern. I think there is some validity that in this nation it should not be construed that mining is the be-all and end-all of everything we do. The Association of Mining and Exploration Companies recently identified that there is no such thing as sustainable mining—it is all finite—and that we need to be developing a plan for the future beyond mining. It is important that we allow our community to be a party to the decision making that goes on in this state and that we do not have just this heavy-handed approach from the mining industry. It goes back, in essence, to the very intent of the legislation when it was introduced in 1978. The Parliamentary Library has produced a copy of all the various debates in 1978 around that legislation. Members should read about the concern that was being raised in both houses in the debate on that bill about the primacy of the mining industry over the wishes and interests of the broader community.

Hon Michael Mischin: No, you’re talking about the local community. You don’t want the broader community to have a say; you want the local community to have a say.

Hon ROBIN CHAPPLE: I think there is some validity in people living in an area determining their outcomes. There was a section in the 1978 bill that actually excluded Esperance. I am not sure whether Hon Wendy Duncan is aware of that, but Esperance was excluded from mining activity by the intent of the 1978 bill. It also excluded a number of other areas because of their value to the community. So the 1978 bill actually ascribed some areas that were to be exempt from mining, based on their rural value. That is exactly what my colleague Hon Giz Watson seeks to do with this piece of legislation.

Hon Michael Mischin: Where are the principles in the bill that say that?

Hon ROBIN CHAPPLE: I will find it.

Hon Michael Mischin: Is there a limit on the minister’s discretion?

Hon ROBIN CHAPPLE: In terms of the bill introduced by my colleague?

Hon Michael Mischin: Yes.

Hon ROBIN CHAPPLE: As Hon Giz Watson has said, the minister has had discretion.

Hon Michael Mischin: Yes, absolute discretion over private property and allowing a town planning scheme of a local government with perhaps a few thousand citizens to decide whether bauxite for the trains that you want to have running as light rail ought to be provided.


Hon Michael Mischin: Aluminium comes from things that are under the ground.

Hon ROBIN CHAPPLE: Yes, I understand that. Bear in mind that I am a miner, so I know what Hon Michael Mischin is talking about.

Hon Michael Mischin: The people of —

The DEPUTY PRESIDENT: Order, members! I need to remind the member on his feet to address his speech to the Chair, please.

Hon ROBIN CHAPPLE: The honourable member opposite has been attracting my attention!

I have most probably said enough, considering that I have only 52 seconds left to go. I really encourage members to read the debate concerning the introduction of the 1978 bill and its passage through both houses of Parliament. I understand that it is not the act that seems to be in operation today. There was certainly a great deal of concern expressed by all members of the house at that time about the rights and responsibilities of local people and their regions.

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