A perspective on one of the serious flaws in the NSW Perrottet Government's new NSW Reconstruction Authority Act which was offered in a last ditch effort to get at least one meaningful amendment to the Bill through the Upper House....
NSW Parliament, Legislative Council Hansard, 17 November 2022:
Mr JUSTIN FIELD (16:23): I move Independent amendment No. 1 on sheet c2022-241:
No. 1Disaster prevention areas
Page 18, clause 41(2)(c), line 2. Omit "potential". Insert instead "imminent".
The amendment goes to the issue of the extraordinary powers in the bill to override the planning Act in New South Wales. To be really clear for members who may not have taken notice of the extraordinary powers that the bill confers on the planning Minister, the bill entirely switches off the provisions of the Environmental Planning and Assessment Act. In fact, there appears to be no limit on the sort of development that could be approved at the stroke of a pen by the Minister. There seems to be no limit on the extent of the proposal, including a proposal that would otherwise be State significant infrastructure requiring very detailed planning and assessment, and there seems to be no limit on where that development could occur in New South Wales.
Under proposed section 68, the planning Minister is authorised to undertake a development without the need for an approval under the Act. This applies under certain circumstances, but those circumstances are my concern. The authorisation may be given "in relation to a declared project, reconstruction area or disaster prevention area". This is a critical point. If you take note of the specifics in the bill, a disaster prevention area could be incredibly broad. There is no requirement for exceptional circumstances. There is no requirement for a disaster to be underway or even likely to be underway in a particular area. If the authority, via the Minister and the Premier, decides that an area is a disaster prevention area, that in and of itself empowers the Minister to authorise the undertaking of a particular development.
In the second reading debate, I raised the example of the Warragamba Dam. I do not for a moment expect that the planning Minister will just authorise the construction of the Warragamba Dam using the provisions of this bill but, to be clear, there is no prevention in the bill. The bill would allow for such a significant development to be undertaken should the Minister, with the concurrence of the Premier, declare the area around the dam to be a disaster prevention area.
Rather than such an extreme example, let us consider a levee around a particular town. Questions around levees are often incredibly controversial. They are raised from time to time and they are highly politicised. Often they must go through extraordinary degrees of community consultation and planning before they are even considered. But, particularly on councils, you will hear some voices arguing strongly for a levee to be increased or a levee to be added. You will hear others warning that there will be incredible downstream impacts as a result that might impact businesses or homes or the environment. I can envisage that these sorts of powers to authorise a development with no restriction could be used to circumvent normal political disputes.
It would be better to resolve the disputes and design such infrastructure, if we were going to proceed with it, in a considered and methodical way using the planning system and all its provisions for consultation in order to go through the potential impacts. But here we have the power to simply declare a disaster prevention area. It is important for people to note just how broad this is. The Minister may make a declaration for such a prevention area if they are satisfied that part of the State is likely to be directly or indirectly affected by disaster. We have had, in the past four years, enough experience to know that any part of New South Wales is likely to be directly or indirectly affected by disaster. We have seen it happen, and we know it is only going to get worse. In my mind, there is no constraint about where this could apply.
The second aspect requires that the authority has recommended making such a declaration. I can envisage that it might arrive at that conclusion because the Minister is satisfied the declaration is necessary to help prevent or mitigate against potential disasters for a community. Not only is it broad in its scope as to where it could apply, the only test is whether the Minister considers that such a development could help prevent or mitigate potential disasters for a community. We have heard the Government make arguments like that for Warragamba Dam. We have heard certain representatives and communities make those sorts of arguments for levees around their towns. We hear those arguments when it comes to clearing of vegetation for fire mitigation, no matter how misguided and not supported by the science that is.
There is a very low test, no threshold, no oversight, no transparency and a very broad remit for an area to be declared a disaster prevention area. Once that is done, the Minister has the power to switch off the New South Wales planning Act entirely and approve a development. That might seem extraordinary, but I have tested it with the Government. The Government has acknowledged that it is true. That is the extent of the powers in the bill, but the Government says, "We don't intend to use it." I would love for the Parliamentary Secretary to clearly put on the record in his response to this amendment that the Government does not intend to use it that way. I agree that the Government would not intend to use it in some of those ways, but I ask this fundamental question: Should emergency powers be used to do preventative work at all? In fact, that is an important consideration. I raised it in my speech to the amendment regarding the climate adaptation plans.
If it is a good idea for the prevention of risk in the instance of a potential disaster, let us do it now. Let us do it in a collaborative and coordinated way. Let us engage the planning system in the way that is intended, which is to raise issues, highlight potential impacts and then mitigate or avoid them where possible. One would expect that that is how it would be done. I have been told by the Government that is not what it intends with disaster prevention areas. The Government described the situation in Lismore with the potential requirement to clear the drains and said that it would have been able to act in advance of that. I do not buy that. There are other provisions in this bill and other elements of the law that would not allow that but, if that is the case, my amendment is clear and simple. Instead of requiring the Minister to be satisfied that the declaration is necessary to help prevent or mitigate against potential disasters for a community, let us omit the word ''potential" and insert instead ''imminent".
There has been sufficient time to understand the potential risks associated with flood and fire impacts in recent years and to give time for an authority, once established, to act at that level to implement projects that could help mitigate risks. But giving it carte blanche with a broad definition "some potential disaster somewhere that it might be likely to directly or indirectly affect", would be open to abuse. This reasonable amendment will bring the bill into line with what the Government says is its intention in the first place. I commend the amendment to the Committee. [my yellow highlighting]
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