Being political tzar of all one surveys does not always mean that the world will bow down before you

There is no disputing that since becoming the ministerial head of that new 'super' federal government department, the Department of Home Affairs, Minister for Immigration and Border Protection Peter Craig Dutton has enjoyed a level of political power not shared by his ministerial colleagues. 

However he is obviously not happy that this power does not intimidate Australian courts and tribunals.

Perhaps this is because his Migration and Refugee Division and Character Assessments and Cancellations Branch are not always winning Dutton's war against orphans, refugees and those under threat of torture.

Administrative Appeals Tribunal decisions¹ in 2018:

1615725 (Refugee) [2018] AATA 1255

The Department of Immigration and Border Protection refused the applicant’s Protection visa. The applicant claimed he could not return to Malaysia due to his homosexuality as he would be subject to discrimination and abuse. The Tribunal set aside the decision. 

1419288 (Refugee) [2018] AATA 282

An application made by a family of three for Protection visas was refused by a delegate of the Minister for Immigration and Border Protection. The applicant seeking protection claimed he was at risk of torture if returned to Pakistan. The Tribunal remitted the decision with the direction that the applicant satisfied section 36(2)(aa) of the Migration Act 1958.

Manash (Migration) [2018] AATA 180

The review applicant sought two Orphan Relative visas for his younger siblings on the basis that their only existing carer, their mother, was incapacitated and could not care for them. The applications were refused by a delegate under section 65 of the Migration Act 1958 and the Tribunal remitted the applications for reconsideration with the direction they met the criteria for the visas.

Sheikh (Migration) [2018] AATA 1056

The Department of Immigration and Border Protection refused the visa applicant's Student visa. The visa applicant was a child residing in Somalia and both of his parents were deceased. His maternal aunt, an Australian citizen, was his carer and was attempting to return home to Australia to her family with the child. The Tribunal set aside the decision. 

Footnote:

1. "The review of decisions to refuse or cancel a visa on character grounds is a small component of the broad range of decisions about visas reviewed by the AAT, and an even smaller component of the overall caseload managed by the AAT. 

To put these matters in context, in 2016–17, the Tribunal finalised 42,224 reviews, of which 168 decisions (or less than 0.4 per cent), related to visa cancellations and refusals on character grounds

In considering and deciding these matters, Tribunal members are bound to apply Ministerial Direction No. 65 which sets out three primary considerations which must be taken into account. These include protection of the Australian community; the best interests of minor children in Australia; and expectations of the Australian Community.  The Direction also sets out five ‘other considerations’ which must also be taken into account, including: international non-refoulement obligations; the strength, nature and duration of ties; impact on Australian business interests; impact on victims; and the extent of impediments if removed.  These decisions are routinely published and contain an explanation of the Members’ evaluation of each of these considerations." [AAT appearance at Senate Estimates, 25 May 2018]

Office of Environment and Heritage v Clarence Valley Council (2018)

Clarence Valley Local Government Area covers approximately 10,441 square kilometres with nine heritage conservation precincts and official heritage listings as long as your arm.

It processes up to $100.5 million worth of development applications in a financial year.

With so much environmentally sensitive land, so many nature reserves, large swathes of native title, state forests and national parks, ancient cultural sites, unlisted historical burials, heritage buildings/bridges/cemetaries, quarries and a good many planning decisions to make, there is also a possibility that something will go awry.

This entry in the NSW Online Registry - Court Lists indicates that all is not well:

Land and Environment Court, Sydney

Justice T Moore

Office of Environment and Heritage v Clarence Valley Council
Case Number: 2018/00119684

Jurisdiction: Criminal

Class 5 Directions Hearing on 25 May 2018.

According the NSW Office of Environment and Heritage website; Proceedings in Class 5 involve summary criminal enforcement proceedings, usually by government authorities prosecuting offences against planning or environmental laws and Class 5 prosecutions are heard by a judge without a jury.

This matter probably began its journey through the court in mid-April 2018 (or perhaps earlier) but it is unlikely council will tell the Clarence Valley electorate what event led to this court case anytime soon, as even a minimum degree of transparency concerning litigation is often missing in action.

Federal Circuit Court on Thursday sentenced Trek North Tours owner operator to 12 months' prison and fined him $67,000

Leigh Alan Jorgensen, Financial Review, 13 May 2018

In the continuing matter of A.C.N. 156 455 828 Pty Ltd & Anor.

Fair Work Ombudsman, media release, 14 May 2018:

Jail term imposed in Fair Work Ombudsman’s first contempt of court case

A Northern Queensland business operator has been jailed – and then released pending the outcome of his appeal – as a result of the Fair Work Ombudsman’s first contempt-of-court action.

On Thursday May 10, the Federal Circuit Court sentenced Leigh Alan Jorgensen - the owner-operator of a Cairns company trading as Trek North Tours – to a 12-month jail term and fined him $84,956 for committing contempt of court by contravening a freezing order that applied to funds in his company’s accounts.

The Court ordered that Jorgensen’s jail term be suspended after he had spent 10 days in jail on the condition of payment of the fine.

Jorgensen sought an urgent stay of the orders in the Federal Court and lodged an appeal against his conviction and sentence. In accordance with her model litigant obligations, the Fair Work Ombudsman agreed to the stay on conditions. On May 11, the Federal Court ordered that his sentence be stayed and Jorgensen be released from jail on conditions, pending the outcome of his appeal.

A Court date has not yet been set for the appeal hearing but an order has been made that it be expedited.

The matter is the first time the Fair Work Ombudsman has commenced a contempt of court action and the first time a jail term has been imposed as a result of the Agency’s actions.

Judge Salvatore Vasta imposed the jail term after finding Jorgensen had committed contempt of court when he contravened a freezing order the Fair Work Ombudsman secured against his company in 2015. 

Freezing orders were imposed in the Federal Circuit Court in 2015 preventing any dispersion of Jorgensen’s and his company’s assets until such time as they complied with penalty and back-payment orders resulting from the Fair Work Ombudsman taking legal action against them for underpaying five back-packers on 417 working holiday visas in 2013 and 2014.

The relevant orders from that legal action, imposed by the Federal Circuit Court in June 2015, were for Jorgensen to pay a $12,000 penalty and his company to pay a $55,000 penalty and back-pay the backpackers in full, all by 17 July, 2015.

The Fair Work Ombudsman took the step of securing freezing orders against both Jorgensen and his company after both failed to pay the amounts owed by the due date and receiving information that gave rise to concerns that Jorgensen would divert company assets to avoid payment of the penalties and back-pay.

At the time, Jorgensen’s communications with the Fair Work Ombudsman suggested he was prepared to ‘bankrupt’ his company to avoid paying the penalties and back-pay order.

Jorgensen had also previously told Fair Work inspectors investigating the underpayments that the backpackers ‘would not get a cent’ in back-pay.

After the freezing orders were imposed, Jorgensen paid the penalty imposed on him personally into Court, resulting in the freezing order against him being lifted.

However, Jorgensen’s company failed to pay its penalty and failed to back-pay the workers, resulting in the freezing order against his company remaining in place.

The Fair Work Ombudsman commenced legal action against Jorgensen for contempt of Court last year, alleging that Jorgensen committed the offence of contempt of court in August 2015 when he contravened the freezing order against his company by transferring a total of $41,035 from two frozen accounts into his family trust account.

Judge Vasta found that the Fair Work Ombudsman had presented evidence to prove, beyond a reasonable doubt, that Jorgensen committed the offence.

Pending the outcome of his appeal, the Federal Court has released Jorgensen on conditions including that he surrender his passport, remain in Queensland and report to Police twice a week.

Fair Work Ombudsman Natalie James says that the commencement of these proceedings demonstrates that her Agency is prepared to use every tool at its disposal to ensure justice is served.

“We will use every lever open to us to ensure the integrity of the administration of justice and compliance with court orders imposed under the Fair Work Act 2009.

“This includes taking unprecedented new actions available to us across the legal framework such as this one.”

BACKGROUND

Australian Securities and Investments Commission (ASIC), media release, 6 February 2017:

17-023MR Former company director charged with making false or misleading statements

Former company director Leigh Alan Jorgensen, of Cairns, Queensland, has been charged with making a false or misleading statement to ASIC.

In February 2016, Mr Jorgensen lodged with ASIC a Form 6010 to voluntarily deregister A.C.N 156 455 828 Pty Ltd (ACN 156 455 828), in which ASIC alleges that Mr Jorgensen falsely and misleadingly claimed the company had no outstanding liabilities. At the time, ACN 156 455 828 had an outstanding liability owing to the Commonwealth and Mr Jorgensen was the sole director.

The charge was brought against Mr Jorgensen following an ASIC investigation into his conduct as a director of the company.

Mr Jorgensen is due to appear at the Cairns Magistrates Court on 21 March 2017.

The Commonwealth Director of Public Prosecutions is prosecuting the matter.

Background

The matter was brought to ASIC's attention by the Fair Work Ombudsman (FWO), who initiated legal proceedings against Mr Jorgensen and ACN 156 455 828 for unpaid employee entitlements. The FWO obtained judgement against ACN 156 455 828 which, in part, required the company to pay the Commonwealth a pecuniary penalty of $55,000. The order was obtained by the FWO before Mr Jorgensen lodged the Form 6010 to deregister ACN 156 455 828.

As a result of ASIC's investigation, Mr Jorgensen has been charged with contravening section 1308(2) of the Corporations Act 2001 (Cth).

Mr Jorgensen ceased as a director of ACN 156 455 828 on 1 March 2016. A Liquidator was appointed to ACN 156 455 828 on 29 July 2016.

Editor's note 1:

Following a hearing at the Cairns Magistrates' Court on 21 March 2017, the matter was adjourned for further mention until 16 May 2017.

Editor's note 2:

Following a hearing at the Cairns Magistrates Court on 16 May 2017, the matter was adjourned for further mention on 27 June 2017.

Editor's note 3:

Following a hearing at the Cairns Magistrates Court on  27 June 2017, the matter was adjourned for further mention on 25 July 2017.

Editor's note 4:

Following a hearing at the Cairns Magistrates Court on  25 July 2017, the matter was adjourned for further mention on 22 August 2017.

Editor's note 5:

Following a hearing at the Cairns Magistrates Court on  22 August 2017, the matter was adjourned to 5 September 2017.

Editor's note 6:

Following a hearing at the Cairns Magistrates Court on  7 September 2017, the matter was adjourned for further mention on 19 September 2017. 

Editor's note 7:  

A warrant was issued for Mr Jorgensen following his failure to attend the Cairns Magistrates Court on 19 September 2017.

Editor's note 8:

Following a hearing at the Cairns Magistrates Court on  27 September 2017, the matter was adjourned to 3 October 2017.

Editor's note 9:

Following a hearing at the Cairns Magistrates Court on 3 October 2017, the matter was set down for a committal hearing on 24 November 2017.

Editor's note 10:

Following a hearing at the Cairns Magistrates Court on 24 November 2017, the matter was adjourned to 13 February 2018.

Aboriginal elders calling for NSW Berejiklian Government to commit to expanding the youth Koori court program

The Guardian, 7 May 2018:

Aboriginal elders have called for the NSW government to commit to expanding the youth Koori court program after an evaluation found it halved the amount of time young people spent in detention. The court began as a pilot project at Parramatta children’s court in February 2015 but has not received ongoing funding. A University of Western Sydney evaluation has found it cut the average number of days spent in youth detention, as well as helping address underlying issues such as unstable accommodation, lack of engagement in education and employment, and disconnection from Aboriginal culture. Elders said it reached children who had little family support and were isolated from the community. 

Problems with the Murray-Darling Basin plan just keep mounting and the NSW Northern Rivers needs to make sure these problems don't become ours

When it comes to the Murray-Darling Basin river systems there is never any really good news - we go from reports of town water shortages, pictures of permanently dry river beds and allegations of widespread water theft to the possibility of a fundamental legal error in the master plan circa 2012.

The Guardian, 2 May 2018:

One of Australia’s foremost lawyers has issued an extraordinary warning that the Murray-Darling basin plan is likely to be unlawful because the authority overseeing it made a fundamental legal error when it set the original 2,750-gigalitre water recovery target in 2012.

Bret Walker QC, who chairs the South Australian royal commission into the Murray-Darling basin plan, issued the warning in a second issues paper. He also spelled out the far-reaching implications of the plan being unlawful.

Not only does it mean that the original water recovery target of 2,750GL was likely to have been set too low to deliver the environmental goal of the Water Act and could be challenged in court, but it also means that amendments to the plan now being debated by the Senate are likely to be invalid as well.

These include a plan to trim 70GL from the northern basin water recovery targets and a suite of projects, known as the sustainable diversion limit adjustment projects, which would be funded in lieu of recovering 605GL in the southern basin.

Both are being strongly criticised by scientists and environmentalists because they believe that they further undercut the environmental outcomes of the plan. 

The Murray-Darling Basin Authority (MDBA) says it has relied on the best available science in recommending the changes.

The new uncertainty over the validity of the amendments will make it difficult for crossbenchers to support them as the Coalition government has urged.

Walker has provided a roadmap for environmental groups or an individual affected to challenge the plan in court.

At the heart of his advice is his view that the Water Act directs the MDBA to ensure environmental outcomes are achieved when it set the environmentally sustainable level of take (ESLT) from the river system. This is the flipside of setting the water recovery target.

But instead of considering the environmental outcomes only, the MDBA applied a triple bottom line approach, giving equal weight to social and economic impacts of water recovery.

“The MDBA also appears to have approached the word ‘compromise’ in the definition of ESLT in a manner involving compromise between environmental, social and economic outcomes rather than in relation to the concept of ‘endangering’ or ‘putting in danger’ environmental criteria such as key environmental assets, and key ecosystem functions,” the SA royal commission said.

 “The commissioner is inclined to take the view that this approach to the word ‘compromise’ in s4 of the Water Act is not maintainable, or alternatively that he is presently unable to see how it is maintainable,” the paper says.

“There is also evidence that recovering an amount of water for the environment of 2,750GL does not, as a matter of fact, represent an ESLT in accordance with the definition of that term under the Water Act.”

Walker pointed to numerous reports, including a 2011 CSIRO report which said modelling based on a 2,800GL recovery target “does not meet several of the specified hydrological and ecological targets”.

There is also evidence that the MDBA received legal advice on more than one occasion, consistent with the commissioner’s concerns.

The issue of water sustainability in the Murray-Darling Basin affects not just those living in the basin and the economies of the four states this large river system runs through – it also affects the bottom line of the national economy and those east coast regions which will be pressured to dam and divert water to the Basin if its rivers continue to collapse.

One such region is the Northern Rivers of New South Wales and in particular the Clarence River catchment area and the Clarence Valley Local Government Area.

Almost every year for the past two decades there have been calls to dam and divert the Clarence River – either north into south-east Queensland or west over the ranges into the NSW section of the Murray Darling Basin.

The latest call came last month on 18 April from Toowoomba Regional Council in south-east Queensland:

The response came on 24 April via NBN News and it was a firm NO:

NO TO CLARENCE WATER DIVERSION via @nbnnews https://t.co/w6DcTaIt4M

— no_filter_Yamba (@no_filter_Yamba) May 1, 2018

However, because communities in the Murray-Darling Basin have for generations refused to face the fact that they are living beyond the limits of long-term water sustainability and successive federal governments have mismanaged water policy and policy implementation, such calls will continue.

These calls for water from other catchments to be piped into the Basin or into SE Queensland are not based on scientific evidence or sound economic principles. 

They are based on an emotional response to fact that politicians and local communities looking at environmental degradation and water shortages on a daily basis are still afraid to admit that they no longer have the amount of river and groundwater needed to maintain their way of life and, are wanting some form of primitive magic to occur.

The Clarence River system is the most attractive first option for those would-be water raiders, but experience has shown the Northern Rivers region that once a formal investigation is announced all our major rivers on the NSW North Coast become vulnerable as the terms of reference are wide.

The next National General Assembly of Local Government (NGA) runs from 7-20 June 2018.

If Toowoombah Regional Council’s motion is placed on the assembly agenda it is highly likely that a number of councils in the Murray-Darling Basin will announce their support of the proposal.

Northern Rivers communities need to watch this NGA closely.

In incremental moves Trump is distorting rights and protections in the U.S.

The U.S. Dept. of Justice Manual contains a collection of basic manuals, guidelines, policy statement and procedures that govern the action of U.S. Attorneys working for the department.

The U.S. Attorneys’ Manual having recently been reviewed by the Trump Administration no longer contains this section for the instruction of its law officers – in PUBLIC SAFETY,  PUBLIC TRIALS, PUBLIC SAFETY & MEDIA RELATIONS sections 1-7.112 Need for Free Press and Public Trial.

A measure of justice for an Australian tweeter

The win won’t eradicate the sustained personal stress or financial difficulties that such an unfair dismissal imposed – still it was pleasing see this tweeter's actions recognised as the right to freedom of political expression.

Hopefully Comcare will not be so bloody minded as to appeal the judgement,

The Sydney MorningHerald, 18 April 2018:

A  former Immigration official sacked over tweets critical of Australia's asylum seeker policy has won a fight for compensation, after an appeals tribunal found her dismissal was unlawful and described government efforts to restrict anonymous comments from its employees as Orwellian.

The decision on Monday will redirect scrutiny to the Immigration Department's dismissal of Michaela Banerji for tweeting criticisms of detention policies, and challenges Australian Public Service rules stopping public servants from expressing their political views on social media.

Ms Banerji took the government to the Administrative Appeals Tribunal after federal workplace insurer Comcare refused to compensate her for the psychological condition that developed after she was sacked in 2013 over tweets from a pseudonymous Twitter account.

The tribunal overturned Comcare's decision and found she suffered depression and anxiety that could be classed an injury under federal compensation laws.

Ms Banerji was working in the Immigration Department when co-workers learnt she was behind the tweets railing against the government's treatment of asylum seekers.

She lost a high-profile attempt to stop her dismissal in the Federal Circuit Court in 2013, a decision seen as likely to curtail other bureaucrats' use of social media when judge Warwick Neville found Australians had no "unfettered implied right (or freedom) of political expression".

In a case that Ms Banerji's lawyer Allan Anforth from Canberra Chambers said could have implications for other public and private sector employees, the AAT said Comcare's refusal was based on a dismissal that was unlawful because it intruded on her right to free political expression.

Her tweets, made from the Twitter handle @LaLegale, were anonymous and did not disclose confidential departmental information, but an internal investigation in 2012 found she had breached the code of conduct for government employees.

In a submission to the tribunal, Mr Anforth said the tweets were posted from her own phone and, in most cases, outside work hours.

The appeals tribunal found the Immigration Department itself had identified Ms Banerji after she posted anonymously, and said guidelines stopping public servants from publicly criticising the government should not be applied to anonymous comments.

"A comment made anonymously cannot rationally be used to draw conclusions about the professionalism or impartiality of the public service," it said.

"Such conclusions might conceivably be open if the comments were explicitly attributed to, say, an unnamed public servant, but that hypothetical situation does not apply to Ms Banerji."

The tribunal found Ms Banerji appeared to have taken care not to have used information which could only have been in her possession as an Immigration employee.

It lashed the government decision to sack her, saying it "impermissibly trespassed upon her implied freedom of political communication", and "with a law only weakly and imperfectly serving a legitimate public interest".

"The burden of the code on Ms Banerji’s freedom was indeed heavy – the exercise of the freedom cost her her employment.

"In our opinion, there is no significant justification available to the employer here for the law which exacted that cost."

Comcare is considering the tribunal's decision. The findings could be appealed in the full Federal Court…..

NSW Bar Association: “As members of the legal profession, we know indigenous Australians, proportionately, are the most incarcerated on earth. This diminishes us as a nation.”

The Australian, 29 March 2018, p.6:

As members of the legal profession, we know indigenous Australians, proportionately, are the most incarcerated on earth. This diminishes us as a nation.

Sovereignty and dispossession, recognition and representation of interests: they are different facets of the same problem. It is something that we, as lawyers, have a duty to help solve. It is because of this duty that the legal profession welcomed the government’s reference to the Australian Law Reform Commission to examine, among other issues, rates of incarceration for the indigenous.

The Pathways to Justice report of the ALRC represents a comprehensive blueprint to address the shameful over-representation of indigenous people in our prisons. Swift and decisive action is required from commonwealth, state and territory governments to ensure its recommendations are implemented.

ALRC recommendations relating to sentencing and bail regimes, the repeal of mandatory sentencing laws, an effective justice reinvestment framework, culturally appropriate community-based sentencing options, and so on, are all aimed at how substantive, not just formal, equality before the law can be achieved for indigenous people. All recommendations are supported by the NSW Bar Association as important initiatives which will contribute to addressing Aboriginal incarceration rates.

The NSW Bar is pleased the ALRC supports establishment of indigenous sentencing courts including the NSW Walama Court. The Walama Court is critical in reducing indigenous incarceration. The model involves community participation and greater supervision, resulting in reduced recidivism and increased compliance with court orders to better protect the community. It is not a “soft on crime” initiative but rather a more effective manner to supervise offenders post-sentence which would enhance rehabilitation and prevent re-offending.

At this stage the NSW government has not allocated funds to establish the Walama Court in the 2018-19 financial year, despite the fact it would have long-term economic cost savings for NSW as fewer indigenous people will be imprisoned and rates of recidivism would be reduced…..

Australian Law Reform Commission (ALRC) Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (ALRC Report 133) Final Report, published on 28 March 2018.

ALRC "Pathways to Justice—An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander P... by clarencegirl on Scribd

https://www.scribd.com/document/375125378/ALRC-Pathways-to-Justice-An-Inquiry-into-the-Incarceration-Rate-of-Aboriginal-and-Torres-Strait-Islander-Peoples-Final-Report

UNITED LAND COUNCILS IN THE NEWS AGAIN: Nicholas Petroulias appears before NSW Independent Commission Against Corruption and represents himself at hearings

*This post will be updated whenever additional information becomes available*

The NSW Independent Commission Against Corruption (ICAC) began a public inquiry on 27 March 2018. 

ICAC’s media release of 7 March 2018 stated in part:

“….as part of an investigation it is conducting into allegations concerning the Awabakal Local Aboriginal Land Council (LALC) (Operation Skyline).

The Commission is investigating whether any public official, being a Awabakal LALC Board director, acted dishonestly and/or in breach of their duty as a Board member in relation to a scheme involving proposals from 2014 to 2016 for the sale and development of properties (“the Sale and Development Scheme”) owned by the land council.

The Commission is also investigating whether any Awabakal LALC Board director acted dishonestly and/or in breach of their duty as a Board member in purporting to retain, or retaining, Knightsbridge North Lawyers or anyone else to act for the land council in respect of the Sale and Development Scheme.

Further, the ICAC is investigating whether any Awabakal LALC Board director: acted dishonestly and/or in breach of their duty as a Board member by participating in, or aiding or assisting any person in relation to, the Sale and Development Scheme including dealings with Sunshine Property Investment Group Pty Ltd, Sunshine Warners Pty Ltd, Solstice Property Corporation Pty Ltd and Advantage Property Experts Syndications Pty Ltd and/or Advantage Property Syndications Ltd; and whether they received any financial or other benefits as a reward or payment for their involvement in, or for their assistance or services rendered in relation to, the Sale and Development Scheme or any connected matter.

The Commission is also examining whether any person or persons encouraged or induced any Awabakal LALC Board director to dishonestly or partially exercise any of their official functions in respect of the Sale and Development Scheme and any other land council property, or otherwise engaged in conduct connected with corrupt conduct within the meaning of the Independent Commission Against Corruption Act 1988.

The public inquiry will start at 10:00 am and will be held in the Commission's hearing room on Level 7, 255 Elizabeth Street, Sydney. Chief Commissioner the Hon Peter Hall QC will preside at the public inquiry, and Counsel Assisting the Commission will be Dr Nicholas Chen SC and Ms Juliet Curtin.

The inquiry is set down for approximately three weeks. A witness list for at least the first week of the proceedings will be published on the ICAC website prior to the commencement of the public inquiry.”

Transcripts of Operation Skyline public hearings can be found here.

Note: PURSUANT TO SECTION 112 OF THE ICAC ACT, A SUPPRESSION ORDER IS MADE PROTECTING AGAINST ANY DISSEMINATION OF ANY PRIVATE EMAIL ADDRESSES, PRIVATE ADDRESSES OR PHONE NUMBERS CONTAINED IN EACH OF THE EXHIBITS TO BE UPLOADED ONTO AND PUBLISHED ON THE COMMISSION’S WEBSITE. I MAKE THAT ORDER SUBJECT TO ANY FURTHER ORDER OF THE COMMISSION.

WEEK 1 WITNESS LIST

Tuesday 27 March 
Terrence Henry Lawler - government appointed Administrator of the Awabakal Local Aboriginal Land Council.

Wednesday 28 March 
Terrence Henry Lawler - government appointed Administrator of the Awabakal Local Aboriginal Land Council.
Omar Bin Abdullah - building design consultant & sole director/shareholder Alamco Pty Ltd (currently under external administration) 
Steven Mark Slee - former CEO Awabakal Local Aboriginal Land Council, former director 
Awabakal Cooperative and Yarnteen College
Cyril Philemon Gabey - one of three directors at The Indigenous Business Union Pty Ltd (IBU) (deregistered 15/01/2017)

Thursday 29 March
John Terry Hancock - former board member Awabakal Local Aboriginal Land Council Eleanor Swan - former board member Awabakal Local Aboriginal Land Council

Deborah June Swan - former board member Awabakal Local Aboriginal Land Council, sister to Elanor

Bernard Michael "Mick' Walsh - former board member Awabakal Local Aboriginal Land Council 

WEEK 2 WITNESS LIST

Tuesday 3 April

Eleanor W Swan - former board member Awabakal Local Aboriginal Land Council

Deborah June Swan - former board member Awabakal Local Aboriginal Land Council 

Larry Warren Slee - former board member Awabakal Local Aboriginal Land Council, father of Steven Mark Slee

Wednesday 4 April

Matthew Fisk - employee of Tony Zong first at Sunshine Property Investment Group and later at Luxeland Group

Tony Zong (Shuxin Zong) - sole director and shareholder of Sunshine Property Investment Group Pty Limited, a commercial fitout & building company

Diane "Dan Dan" Ren - property developer, co-director and co-shareholder of Luxeland Group Pty Ltd with Tony Zong *not questioned on the day*

Thursday 5 April
Tony Zong (Shuxin Zong) - sole director and shareholder of Sunshine Property Investment Group Pty Limited, a commercial fitout & building company

Nicole Steadman - former interim chair of Awabakal Local Aboriginal Land Council *not questioned on the day*

Friday 6 April
Tony Zong (Shuxin Zong) - sole director and shareholder of Sunshine Property Investment Group Pty Limited, a commercial fitout & building company
Larry Warren Slee - former board member Awabakal Local Aboriginal Land Council, father of Steven Mark Slee

Ronald Wayne Jordan - former board member Awabakal Local Aboriginal Land Council, employed by family business

Candy Towers - member Awabakal community, former employee Awabakal Local Aboriginal Land Council *not questioned on the day*

WEEK 3 WITNESS LIST

Monday 9 April
Larry Warren Slee - former board member Awabakal Local Aboriginal Land Council, father of Steven Mark Slee
Leonard James Quinlan - former board member Awabakal Local Aboriginal Land Council
Dr. Raymond Kelly - former board member Awabakal Local Aboriginal Land Council

Tuesday 10 April
Dr. Raymond Kelly - former board member Awabakal Local Aboriginal Land Council
Ronald Wayne Jordan - former board member Awabakal Local Aboriginal Land Council, employed by family business

Clayton Hickey - accountant with PKF Lawler *not questioned on the day*
Ian Sheriff - solicitor *not questioned on the day*

Wednesday 11 April

Keith Kang Rhee - co-director and one of two shareholders in of Keeju Pty Ltd a family sushi business

Sammy Sayed aka Sam Say - said to be in real estate/properties

Thursday 12 April

Sammy Sayed aka Sam Say - said to be in real estate/properties

Ian Sheriff - solicitor

Diane "Dan Dan" Ren - property developer, co-director and co-shareholder of Luxeland Group Pty Ltd with Tony Zong

Friday 13 April

Nicole Steadman - former interim chair of Awabakal Local Aboriginal Land Council 

Candy Towers - member Awabakal community, former employee Awabakal Local Aboriginal Land Council

The Sydney Morning Herald report on Day One of the hearings, 27 March 2018:

Disgraced former assistant tax commissioner Nick Petroulias has resurfaced at the centre of a corruption probe into a series of deals to sell off up to $30 million worth of Aboriginal land in the NSW Hunter region.

Mr Petroulias was one of the country's most senior public servants before his high-profile jailing in 2008 for corrupt conduct and unauthorised publication of Commonwealth documents.

The first day of public inquiry by the Independent Commission against Corruption (ICAC) has heard that Mr Petroulias played a "central role" in three deals - and one attempted deal - to sell off land belonging to the Awabakal Local Aboriginal Land Council.

In one of the more extraordinary allegations, Mr Petroulias was accused of signing a 2014 deal on behalf of a company director who was already dead at the time he was appointed.

The deals took place between 2014 and 2016, with the most lucrative worth $30 million, the inquiry heard.

In his opening address, counsel assisting Nicholas Chen SC alleged that Mr Petroulias used a "two dollar company" he controlled - known as Gows Heat - to obtain purchase rights over several parcels of Awabakal land.

"Mr Petroulias at that time had recently been made a bankrupt," Mr Chen told the inquiry. "Neither Gows Heat nor Mr Petroulias paid any money to the land council to secure this 'right'."

It was alleged Mr Petroulias on-sold the purchase rights to a new buyer and then attempted to on-sell the rights again to another buyer, while both remained unaware of the other's existence.

"Gows Heat and Mr Petroulias secured a significant windfall: he sold this "right", around six months later, and received around $1.1 million as a result," Mr Chen said.

Whether Awabakal's board was aware of these deals - and how the deals could go ahead without disclosure to the board - will be investigated by the inquiry.

The inquiry will also examine the actions of two former Awabakal board members involved in the transactions - Richard Green and Debbie Dates - and a lawyer who executed the deals on the land council's behalf.

That solicitor, Despina Bakis, was the sole director of Sydney firm Knightsbridge North Lawyers. Mr Chen noted that she had been in what could be described as an "on-again, off-again" relationship with Mr Petroulias for about 20 years.

Mr Chen noted that neither Ms Bakis or Mr Petroulias were Indigenous and Ms Bakis had "no relevant experience" in undertaking the kind of work she was tasked to do by the land council.

The inquiry heard Mr Petroulias has adopted a string of aliases, including Nick or Nicholas Piers; Nick or Nicholas Pearson and Nick or Nicholas Petersen.

A number of corporate entities with links to Mr Petroulias had been created using the identities of people that knew nothing of their involvement, Mr Chen alleged.

The Newcastle Herald reporting on Day One, 28 March 2018:

The land council's administrator, Terry Lawler, took to the witness box on Tuesday afternoon, testifying that he found no copies of any agreements to sell Awabakal land when he was installed by the state government in 2016. 

Mr Petroulias, representing himself, grilled Mr Lawler over what he told Awabakal members before they voted on one of the land deals.

"Did you mention that I was a criminal to the membership of the meeting?," he asked. 

Mr Lawler responded that a solicitor acting for him may have, but added “fact’s facts”. 

When he put the issue to a vote, there was a "sea of hands" against the proposal, Mr Lawler said. 

“One of the members actually said: ‘are you a comedian?’,” he recalled. 

Mr Lawler told the inquiry that when he was first made aware of the deal, involving a company called Advantage Property Experts Syndications, he “didn’t have any information” about whether it was a good or bad deal.

However he was stunned at proposals relating to the post office. 

“The thing that did really strike me, and I remember thinking ‘this bloke’s delusional’, is that he said to me ‘part and parcel of this is we're going to do up the post office and hand it back to the NSW state government so as they’ll provide us with a strategic state development approval for the development of Hillsborough Road,” Mr Lawler told the inquiry.  

“I found that an interesting statement, because that's just not the way things work.” 

Mr Lawler also noticed a number of typos within the agreement. 

“To be frank some of the agreements I found extremely difficult to read, understand, there were differing parties … one party on the cover sheet another party in the agreement, there were references to agreements even then that I hadn’t seen,” he said.  

Mr Lawler claimed he has since been the target of abusive, defamatory and inaccurate letters and a “slanderous” social media campaign. 

He alleged a businessman associated with Advantage and two other people stood outside a recent Awabakal meeting, handing out flyers making similar allegations.

“My local residential area was letter-boxed with those flyers that same evening and it’s clear from the Facebook post from Advantage that I’m being stalked,” he said. 

“There are quite a lot of photos that are nothing other than me just going about my business.” 

Mr Lawler has reported the matters to police....

 Mr Chen described Ms Bakis’ appointment as “more than a little curious”, given that the land council had been making use of a “highly experienced” commercial and property lawyer. 

He further alleged that Ms Bakis was appointed by Mr Green without the board’s authority until a motion to ratify her appointment more than a year later. 

It’s understood that Ms Bakis will argue that she was always given to understand her appointment was authorised. 

Mr Lawler told the hearing that when he was installed he did not find any records relating to Ms Bakis’ appointment and when he asked for them, it triggered a “flow” of abusive material. 

“Abuse, complaints, accusations and being told that she’s not my secretary and that I’m a thief, it just goes on,” he said. 

“I have never experienced – let alone from a professional person – I’ve never experienced the style in which Ms Bakis writes … clearly [she was] an angry little ant.” 

The Newcastle Herald reporting on Day Two, 28 March 2018:

 A corruption inquiry has been told board minutes of the Awabakal land council appear to have been falsified to show it voted in favour of selling land to a company tied to disgraced former assistant tax commissioner Nick Petroulias. 

It came as a Sydney developer told the Independent Commission against Corruption (ICAC) he did not understand how a reference to the same company – Gows Heat Pty Ltd – ended up in documentation he prepared on the development of the land…. 

Mr Petroulias was a “common feature” in all of the deals and Gows Heat a shelf company he controlled, it has been alleged.  

In the witness box on Wednesday was Omar Abdullah, a building designer and new home specialist based in Sydney. 

He made an overture to the land council in late 2014, after he was informed by a business contact it had property ripe for development. 

Mr Abdullah told the inquiry he was given an opportunity to meet with Awabakal’s board and present it with discussion material on potential developments. 

He felt the presentation was met with a “positive reaction”, but Mr Abdullah did not pursue a deal when he got “nothing formal back” from the board.

The inquiry previously heard a “critical matter” will be an allegation from Mr Petroulias that the presentation was made jointly with Gows Heat. 

When asked if he had ever heard of Gows, Mr Abdullah replied “absolutely not”. 

Mr Abdullah was then shown a document that appeared to be identical to the one he circulated during the presentation, but included a reference to Gows Heat. 

“I’ve never seen this document,” he said. 

The land council’s chief executive at the time, Steven Slee, was questioned over his recollection events. 

Mr Slee told the inquiry the board resolved to contact Mr Abdullah to pursue the land proposal, a resolution reflected in typed and signed minutes and a “running list” of resolutions kept at the land council’s offices.  

Council assisting Nicholas Chen SC tendered those documents as evidence, before presenting Mr Slee with an additional book containing handwritten minutes. 

Mr Slee agreed it appeared someone had written extra words around the resolution. 

He was unable to decipher what they said, but observed they started with the letters “Go”. 

Mr Slee was then shown a different resolution that appeared to have been stapled into the minute book, recording a decision to push ahead with the sale of the land to Gows Heat. 

“Mr Slee, whilst you were CEO was it the practice of the board to staple resolutions into minute books?” Mr Chen asked. 

“No,” Mr Slee responded, agreeing it appeared someone had tampered with the minutes. He was unable to pinpoint who it might be. 

The Newcastle Herald reporting on  Day Five, 5 April 2018:

As an experienced property developer and qualified valuer based in Sydney, Matthew Fisk knew his way around a land deal.

But as he bargained with the Awabakal Local Aboriginal Land Council over land it owned at Warners Bay, there were aspects of the negotiations that struck him as strange.

One of the more “unusual” elements, Mr Fisk told an Independent Commission against Corruption inquiry, was the role of disgraced former assistant tax commissioner Nick Petroulias and an instance where Mr Petroulias allegedly “scribbled out” a figure in a contract….

Mr Zong later took – and dropped – legal action against the land council, claiming he was not informed the deal did not have proper authorisation.

Mr Zong’s involvement began in 2015, when he attended a meeting at Warners Bay McDonalds over a potential land deal. 

Mr Fisk told the inquiry he accompanied Mr Zong to the meeting, also attended by Mr Green and Mr Petroulias.

The parties were allegedly brought together by a former inmate who served time with Mr Petroulias at Silverwater jail – Sammy Say  – who was acquainted with a contact of Mr Zong. 

Mr Fisk recalled one of the third parties introducing Mr Petroulias as a lawyer acting for the land council. 

So he was surprised – at the end of a tour – when he was informed that Mr Petroulias had a “larger interest”.

“I believe it was Sammy Say that had used words to the effect that Nick has already put the deal together,” Mr Fisk recalled. “Then Nick proceeded with he already has an option to acquire these five parcels of land and it would be, in fact, us … acquiring Nick’s option moving forward.” 

An option is where a potential buyer pays a vendor for the right to purchase their property at a fixed price at a later time. The vendor can not sell the property to a third party in that period. 

Council assisting Nicholas Chen asked Mr Fisk if he thought it unusual that the land council’s lawyer would have an option over its land. 

“I thought it was quite unusual, particularly that when I asked what the purchase price was I was told that it was to be subject to valuation,” Mr Fisk said. 

According to Mr Fisk, another odd twist came as a contract was being signed with the amount to be paid out to Gows Heat. 

“After Mr Zong had signed the document Mr Petroulias then lent over, scribbled out $250,000, wrote $673,000 and then initialled it,” Mr Fisk said. 

“Tony [Zong] said, look, he said to Nick, ‘what are you doing?’ I don’t recall the response that was given but I found it very unusual.” 

Other media reports on Operation Skyline hearings:

Tax man and elder locked horns: ICAC

Knightsbridge North Lawyers and Despina Bakis attempt to have Awabakal ICAC inquiry thrown out

No grand plan for land with Nick Petroulias, ICAC hears from businessman Tony Zong

ICAC’s attention on Candy and Dates

ICAC hears of threats after CEO sacking 

North Coast Voices’ readers might recall that Nick Petroulias (using the name Nicholas Peterson) and Richard Green gave sworn evidence before the NSW Legislative Council General Purpose Standing Committee No. 6 INQUIRY INTO CROWN LAND, as part of United Land Councils' lobbying for the potentially environmentally destructive Yamba Mega Port proposal.

Before Operation Skyline’s public hearing began, one of those named in the inquiry began short-lived and unsuccessful proceedings in Knightsbridge North Lawyers Pty Limited v Independent Commission Against Corruption.

The matter of the proposed Awabakal land sales was also before the NSW Supreme Court in 2017….

The Newcastle Herald, 21 October 2017:

The matter is the subject of a Supreme Court legal battle that veteran lawyers have described as one of the most extraordinary cases they have seen in their careers.

Labelled by a lawyer familiar with the case as a real-life version of “Alice in Wonderland”, its cast of characters includes an international fugitive known as Robbie Rocket, a convicted drug dealer and a dead company director who somehow continued signing agreements a year after he was cremated in a Sydney cemetery.

The existence of an international money laundering syndicate and a karaoke junket intended as a bribery attempt are among the other sensational allegations contained within thousands of pages of evidence that have been tendered to the court.

Last year in an unrelated matter Mr. Petroulias was the defendant in Director of Public Prosecutions (Cth) v Petroulias [2017] NSWSC 1290 (28 September 2017), excerpts:

When this matter came on for hearing before me there was no appearance on behalf of the defendant. The defendant now goes by the name Michael Felson. For abundant caution both of his names were called outside court three times….

During the hearing I was informed that the defendant is an undischarged bankrupt. He was declared bankrupt by a sequestration order made by the Federal Circuit Court on 23 October 2014. His statement of affairs was filed on 10 March 2015. He will thus be eligible to be discharged from bankruptcy on 10 March 2018.