The Senate Environment and Communications References Committee Continuation of construction of the Perth Freight Link in the face of significant environmental breaches March 2017 ISBN 978-1-76010-527-3 Committee contact details PO Box 6100 Parliament House Canberra ACT 2600 Tel: 02 6277 3526 Fax: 02 6277 5818 Email: [email protected] Internet: www.aph.gov.au/senate_ec This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License. The details of this licence are available on the Creative Commons website: http://creativecommons.org/licenses/by-nc-nd/3.0/au/. This document was printed by the Senate Printing Unit, Parliament House, Canberra Committee membership Committee members Senator Peter Whish-Wilson, Chair AG, TAS Senator Linda Reynolds, Deputy Chair LP, WA Senator Anthony Chisholm ALP, QLD Senator Sam Dastyari ALP, NSW Senator Jonathon Duniam LP, TAS Senator Anne Urquhart ALP, TAS Substitute members for this inquiry Senator Sue Lines (ALP, WA) for Senator Anne Urquhart from16 February 2017 Senator Louise Pratt (ALP, WA) for Senator Anthony Chisholm from 16 February 2017 Participating member for this inquiry Senator Chris Back LP, WA Senator Scott Ludlam AG, WA Committee secretariat Ms Christine McDonald, Committee Secretary Mr Colby Hannan, Principal Research Officer Mr Nicholas Craft, Senior Research Officer Ms Fattimah Imtoual, Senior Research Officer Ms Kirsty Cattanach, Research Officer Ms Michelle Macarthur-King, Administration Officer iii iv Table of contents Committee membership ................................................................................... iii List of recommendations ..................................................................................vii Chapter 1.............................................................................................................. 1 Introduction .............................................................................................................. 1 Background ............................................................................................................. 1 Criticisms of the Freight Link ................................................................................ 5 Environmental approval ......................................................................................... 7 Legal challenges to Roe 8 on environmental grounds ......................................... 10 Order for the production of documents ................................................................ 11 Conduct of this inquiry ......................................................................................... 14 Structure of this report .......................................................................................... 15 Acknowledgements .............................................................................................. 15 Chapter 2............................................................................................................ 17 Issues raised............................................................................................................. 17 Introduction .......................................................................................................... 17 Environmental and cultural significance .............................................................. 17 Environmental damage caused by Roe 8 works ................................................... 18 Implementation of the Fauna Environment Management Plan ............................ 19 Implementation of the Construction Environmental Management Plan .............. 29 Flaws with Management Plans for the project ..................................................... 33 Responses of the state and Commonwealth to potential breaches ....................... 34 Timing of commencement of construction .......................................................... 36 Committee view .................................................................................................... 37 Government senators – dissenting report ....................................................... 41 Labor senators' additional comments ............................................................. 47 Appendix 1 ......................................................................................................... 49 Submissions and additional information received by the committee ................ 49 Appendix 2 Public hearings ............................................................................. 51 v vi List of recommendations Recommendation 1 2.93 The committee recommends that, pursuant to subsection 144(2A) of the Environment Protection And Biodiversity Conservation Act 1999, the Minister for the Environment suspends the Roe 8 construction works until he has ascertained that all the conditions of the approval issued for the Roe 8 works have been met by the Western Australian government and by relevant contractors. Recommendation 2 2.94 The committee recommends that—whatever the outcome of the Western Australian state election taking place on 11 March 2017—the Commonwealth works with the state government and other stakeholders to develop productive and economically viable infrastructure projects in Western Australia that incorporate rigorous environmental assessments and conditions. Recommendation 3 2.95 The committee recommends that the Commonwealth government act urgently to amend the EPBC Act to provide for emergency listings of threatened species and ecological communities, and to consider addressing the effect of section 158A of the EPBC Act which currently prevents consideration of threatened species or ecological communities which are listed after the time a referral is made. Recommendation 4 2.96 The committee recommends that the Australian National Audit Office (ANAO) conduct an audit of the Perth Freight Link project including in relation to: • whether appropriate steps were taken to protect the Commonwealth's interests and obtain value for money in respect to the $1.2 billion in Commonwealth funding committed to the Western Australian government for the Perth Freight Link project; • the effectiveness of federal environmental protection laws, in particular the extent to which the Department of the Environment and Energy: • complied with its own policies (specifically including Offsets policy and protection of species with Recovery Plans), • adequately assessed impacts on matters of national significance during the assessment process, • adequately investigated and enforced compliance with approval conditions, vii • adequately responded to evidence significant and systematic breaches with management plans were being ignored by the state government; • the adequacy of penalties to the approval holder for non-compliance under federal environmental protection laws; and • political interference with the environmental assessment and compliance process. viii Chapter 1 Introduction 1.1 On 16 February 2017, the Senate agreed to the following motion referring the matters related to the Perth Freight Link to the Environment and Communications References Committee (the committee) for inquiry and report by 6 March 2017: a. the Senate notes the failure to comply with the Senate orders for the production of documents agreed to on 13 and 14 February 2017, relating to the Perth Freight Link; b. in order to investigate the subject of the Senate orders, the following matter be referred to the Environment and Communications References Committee for hearing on or before 24 February 2017, and reporting on or before 6 March 2017—The continuation of construction of the Perth Freight Link in the face of significant environmental breaches; c. it be an instruction to the committee that it hold at least one hearing in Perth; and d. the following witnesses be invited and answer questions: i. Department of the Environment and Energy compliance and environmental standards officers, ii. the Minister for the Environment and Energy , Mr Josh Frydenberg, iii. Federal Legal Counsel to the Minister and the Department, iv. the Western Australian Minister for Environment, Mr Albert Jacob, the Office of the Environmental Protection Authority, in particular, senior compliance managers Mr Ian Munro and Mr Paul Zahara, v. the proponent, Main Roads Western Australia, vi. Leightons contractors, vii. subcontractors completing the surveying work, fencing and trapping, viii. witnesses who have directly documented breaches with federal approval conditions, and reported these to the minister, and ix. other witnesses as determined by the Environment and Communications References Committee.1 Background 1.2 The Perth Freight Link is a $1.9 billion project intended to improve freight infrastructure and traffic congestion in Perth, by providing a direct high-standard freight connection between the Roe Highway and Fremantle Port.2 Its implementation has been designed in three stages: 1 Journals of the Senate, 6 February 2017, p. 997. 2 Department of Infrastructure and Regional Development, Perth Freight Link at http://investment.infrastructure.gov.au/projects/ProjectDetails.aspx?Project_id=052776-14WA- PKG (accessed 21 February2017). 2 • Section One—Roe Highway Extension (Roe 8): A 5.2 kilometre four lane dual carriageway from the Kwinana Freeway to Stock Road and an interchange connecting to Stock Road. • Section Two—Winterfold Tunnel: a surface route along Stock Road between Roe 8 and Winterfold Road, then a 3.3 kilometre tunnel proceeding North- West to the Stirling