The rape of north-east New South Wales continues

 

Linnaeus Estate, Byron Bay
IMAGE: http://linnaeus.com.au/

Echo, 7 November 2022:

Mayor, I agree, let’s set the record straight. Here’s a fact: the community was denied the right to know about the Linnaeus Estate rezoning to Mixed Use Development. The 25 August 2016 Council agenda reveals that there was no report to Council to endorse the change from Education, as required, and doesn’t include any information about the Linnaeus Estate zone change.

In September 2015 Council resolved to change the zone label from Education Establishment to Private Education Facility. It had been zoned restrictively for Education since 1990. So why was it exhibited with the broad term, ‘Multi Use Development’ in 2016? It’s not a fact that Parliamentary Counsel recommended the change, and if so, why wasn’t that reported? In April 2020 a further report admitted a ‘fundamental error’ that the zone allows Community Title (CT).

All in, a massive increase in development potential without the community knowing.

This represents a lack of procedural fairness, a denial of the community’s right to know about the changes for this significant land.

Recently, a further poor process for the Ecotourism development application (DA).

Who benefits? Not the community and not the environment.

Who’s to blame? Perhaps a council that fails to question the processes we rely on. Byron community Deserves Better.

Jan Barham, Broken Head, Former Byron Shire mayor

BACKGROUND

ECHO, 10 May 2021:

Community concern over the current development application (DA: 10.2021.170.1) for Linnaeus Estate in Broken Head has led to detailed analysis of the DA.

A key point of contention is the impact of the proposed development on the Nationally Critically Endangered Ecological Community (EEC), Littoral Rainforest at the site.

According to the Broken Head Protection Committee (BHPC), the DA seeks to clear an area of Littoral Rainforest as identified in the Biodiversity Assessment.

They point out that the 2019 Federal Government Recovery Plan under the Commonwealth Environment Protection and Biodiversity Conservation Act (EPBC) for the EEC has not been referenced in the application.

As a result the BHPC are calling for ‘the proposal to be referred to the Federal Government owing to the likely impact on the EEC due to the proposed change of use for the site and the associated intensification of impacts.’

However, the clearing of littoral rainforest has been disputed by one of the Linnaeus Estate representatives Brandon Saul, who told The Echo, ‘The Biodiversity Assessment you refer to clearly indicates the project has been carefully planned so as to avoid all mapped rainforest on the site. Put simply, no SEPP (State Environment Planning Policy) mapped rainforest will be cleared.

Mr Saul acknowledges that there will be an area of 0.44ha cleared, but stated that ‘The calculated compensation planting for this impact is 1,670 trees, but we will be planting a lot more.’

Around eighty objectors to the project rallied on the beach in front of the proposed site Friday morning….

ECHO, 27 February 2020:

A public meeting to discuss a ‘low-scale wellbeing retreat’ development proposal, at a gated beachside estate, situated between Byron Bay and Lennox Head will be held at the Broken Head Community Hall on Sunday March 1, from 4pm.

Council staff have told Echonetdaily the Linnaeus Estate DA will go before the Northern Regional Planning Panel.

While a DA is yet to be lodged, it has stirred neighbours into action.

According to the owners, ‘The 111.2 hectare property is covered by a combination of special activities – mixed use, environmental, private education and some rural zonings. While the zoning allows for tourism, the property is currently only approved for private education.

‘The application will seek to continue with current uses, as well as establish a low-scale eco-retreat, incorporating the existing facilities – pool, communal buildings and tennis court. The pool area would be upgraded with wellness facility (spa), toilets and showers and an evacuation building, back of house (office space, staff amenities and parking), bin and storage area and garden shed would be constructed.

‘The application proposes that 11 approved, but unbuilt, units with a combined floor space of 2,388m2 not be erected. That instead, 33 new two-person cabins/treehouses with a combined floor space of 1,862m2 be constructed for eco-retreat guests’.

Former Greens mayor and NSW MLC, Jan Barham, has flagged her concerns, which range from climate change impacts, foreseeable risk of future erosion and liability of Council.

Barham said, ‘It is unbelievable, with the coastal problems Council has been dealing with for decades, that in 2020, Council would create new lots in a coastal risk area, especially when they have declared a climate emergency.

‘There is also the likelihood of a repeat of historical events such as cyclones and east coast lows that could ravage this section of coast, and with Council supporting the new zonings in the risk area, there are serious consequences.

‘Disturbingly the proposal has identified as per the staff report: “15 lots in the coastal erosion zone,” but states that this will be dealt with by conditions of consent for any of the structures to comply with the relocatable provisions of the LEP and DCP.’

Developer replies

One of the developers, Brandon Saul, has hosed down what he says are misunderstandings about the proposal and process.

He told Echonetdaily that the proposal will not increase the number of people staying onsite ‘above what has already been adopted in the Rural Land Use strategy’.

Responding to queries as to expected numbers, he says ‘I suspect we’d be lucky to get 20 people at a time interested in the type of things we’d be looking to present’…..

Echonetdaily also asked, ‘Presumably this rezoning can be a catalyst for expanded operations in the future – ie a thin edge of the wedge?’

Saul replied, ‘We are not asking Council to re-zone the property. Tourism is already a permissible use on the land we propose to use for our retreat. That said, the “thin end of the wedge” argument represents a valid concern.

‘On that point, I’d encourage those that are concerned to take a closer look at the site and our proposal. While Linnaeus is a large parcel of land, most of it is not suitable for development and never will be. Much of it has already been voluntarily earmarked for ecological preservation under the council’s new “e zone” process and much of it is low lying grassland, not suitable to development…..

Note: Property developer Brandon Saul describes himself as "Serial entrepreneur with an interest in music, art, architecture, finance, technology, event management, social marketing and property development". He is currently a director of North Byron Parkands and Principal & Managing Director of The Mixed Media Group according to his Linkedin entry.

How for a total of 1,609 days Scott John Morrison hid his ambition to be a 'president' rather than a humble Prime Minister of Australia

Office of Prime Minister and Cabinet, 23 August 2022:

Solicitor-General’s opinion

23 August 2022

On 22 August 2022, the Prime Minister received the Solicitor-General’s opinion (SG No 12 of 2022) – In the matter of the validity of the appointment of Mr Morrison to administer the Department of Industry, Science, Energy and Resources PDF 945KB.

Only the validity of one Appointment of a Minister of State by the Governor-General was considered in the Solicitor-General’s investigation – that of then Australian Prime Minister Scott John Morrison to administer the Dept. of Industry, Science, Energy and Resources (DISER) from 15 April 2021 onwards.

IMAGE: pmc.gov.au

IN THE MATTER OF THE VALIDITY OF THE APPOINTMENT OF MR MORRISON TO ADMINISTER THE DEPARTMENT OF INDUSTRY, SCIENCE, ENERGY AND RESOURCES

EXCERPT ONE

1. On 12 April 2021, the former Prime Minister, the Hon Scott Morrison MP, wrote to the Governor-General of the Commonwealth of Australia (the Governor-General) to recommend that the Governor-General “appoint me, as Prime Minister, to administer the Department of Industry, Science, Energy and Resources” (DISER). Mr Morrison advised the Governor-General that this appointment would allow him “to be the responsible Minister for matters within that Portfolio, if and when required”.

2. Mr Morrison enclosed with his letter a document headed “Appointment of Minister of State”, with space for the Governor-General’s signature.

EXCERPT TWO

29. While I consider that Mr Morrison’s appointment to administer DISER was valid, that is not to say that the absence of any notification of that appointment to the Parliament, the public, the other Ministers administering DISER or DISER itself was consistent with the principle of responsible government that is inherent in Ch II of the Constitution. In my opinion, it was not.

(i) Responsible government

30. The provisions of Chapter II are sparse. Nevertheless, the High Court has long recognised that they provide for a system of responsible government – meaning a “system by which the executive is responsible to the legislature and, through it, to the electorate”. Indeed, responsible government has been recognised as a “central feature of the Australian constitutional system”. As a majority of the High Court put it in the Engineers Case, the Constitution is “permeated through and through with the spirit of … the institution of responsible government”.

EXCERPT THREE

(iii) Recent change in practice concerning Ministry lists

42. Apparently since Mr Morrison became Prime Minister in August 2018 (and certainly since no later than 25 January 2019), it has not been possible to infer from the Ministry list that a Minister has been appointed to administer only such departments as fall within the portfolios against which that Minister’s name appears. That follows because, since that time, the footer to the Ministry list has denied the legitimacy of any such inference, by expressly stating that Ministers “may also be sworn to administer other portfolios in which they are not listed”. The impetus for the inclusion of those words is unclear, although it seems possible that they were included so as to ensure that the tabling of the Ministry list did not mislead Parliament. The words contemplate an apparent practice whereby Ministers may be appointed to administer one or more departments of State without those appointments being published (at least in the Ministry list). The point is starkly illustrated by the fact that Mr Morrison’s name did not appear in the Ministry list published in October 2021 with respect to any of the five departments that he was appointed to administer between March 2020 and May 2021.

43. The result of the analysis above is that there was no way the public could discern from the Ministry list, or anywhere else, that Mr Morrison had been appointed to administer either DISER or any of the other four departments that he was appointed to administer between March 2020 and May 2021. There was likewise no way of knowing whether any other Ministers had also been appointed to administer additional departments without that being mentioned in the Ministry list.

(iv) Implications for responsible government

44. The capacity of the public and the Parliament to ascertain which Ministers have been appointed to administer which departments is critical to the proper functioning of responsible government, because it is those appointments, when read together with the AAO, that determine the matters for which a Minister is legally and politically responsible.

45. The pathway to that conclusion is fairly technical. It is the result of reading the AAO together with the Acts Interpretation Act 1901 (Cth). The AAO provides that a Minister who has been appointed to administer a department is responsible for administering the legislation listed in the Schedule to the AAO relating to that department. The Acts Interpretation Act 1901 (Cth) then provides that references to “the Minister” in legislation are to be interpreted as a reference to “the Minister, or any of the Ministers, administering the provision”. The result is that the Ministers who are entitled to exercise statutory powers under any Act of the Commonwealth Parliament cannot be identified without first identifying from the AAO which department administers that Act, and then identifying the Ministers who have been appointed to administer that department.

46. The end result is that, to the extent that the public and the Parliament are not informed of appointments that have been made under s 64 of the Constitution, the principles of responsible government are fundamentally undermined. Neither the people nor the Parliament can hold a Minister accountable for the exercise (or, just as importantly, for the non-exercise) of particular statutory powers if they are not aware that the Minister has those powers. Nor can they hold the correct Ministers accountable for any other actions, or inactions, of departments. The undermining of responsible government therefore does not depend on the extent to which Mr Morrison exercised powers under legislation administered by DISER, because from the moment of his appointment he was both legally and politically responsible for the administration of that department, and yet he could not be held accountable for the way that he performed (or did not perform) that role.

47. Separately from the problem of holding Ministers to account, if multiple Ministers have been appointed to administer a single department, those Ministers (or the Prime Minister) are responsible for working out the division of responsibilities between themselves. However, if one Minister does not know that another Minister has been appointed to administer their department, that obviously cannot occur.

48. Finally, an appointment under s 64 of the Constitution is an appointment to “administer” a department. Plainly, however, a department cannot, in practice, be administered by a person whose appointment has not been revealed to the department itself. Failure to inform at least the Secretary of the department of the appointment therefore defeats the purpose of the appointment. It also prevents the department from taking appropriate steps to support and advise that Minister if the Minister decides to exercise powers under any legislation that is administered by that department (unless the appointment is disclosed at that time, as appears to have occurred with respect to Mr Morrison’s appointment to administer DISER). An unpublicised appointment to administer a department therefore fundamentally undermines not just the proper functioning of responsible government, but also the relationship between the Ministry and the public service.

[my yellow highlighting throughout the excerpts]

Prime Minister Anthony Albanese on 23 August 2022 announcing the result of the Inquiry and the need to establish a second inquiry:

ABC News, 23 August 2022, on the subject of the mechanics of establishing the first of five appointments of Scott Morrison to administer a department. In this case the federal Dept. of Health, a portfolio of the then Minister for Health Greg Hunt:

A three to four-page protocol was drafted for approval by the National Security Committee (NSC) of cabinet, which comprised Morrison, then-deputy PM Michael McCormack, Hunt, Peter Dutton (Home Affairs), Mathias Cormann (Finance), Marise Payne (Foreign Affairs) and Linda Reynolds (Defence).

And on March 14, the Governor-General signed an administrative instrument that appointed Scott John Morrison to administer the Department of Health.

Four days later — March 18, 2020 — a "human biosecurity emergency" was declared under the Biosecurity Act, giving health minister Greg Hunt sweeping, plenary powers.

Only members of the NSC — and the Governor-General — knew that Morrison also had that authority, which amounted to effective power of martial law.

Clarence Valley Council fights to limit access to its local government register of councillors' interests

And local government wonders why it has such a bad reputation across Australia.......

Clarence Valley councillors (left to right)
Back Row: Andrew Baker, Debrah Novak, Karen Toms, Richie Williamson, Peter Ellem, Greg Clancy
Front Row; Jim Simmons, Arthur Lysaught, Jason Kingsley
IMAGE: Clarence Valley Independent, 22 January 2020

Clarence Valley Independent, 22 January 2020:

Five of the valley’s councillors have remained staunch in their opposition to uploading their annual disclosure of interest returns to Clarence Valley Council’s (CVC) website. 

Councillors Williamson, Lysaught, Baker, Kingsley and Ellem were unmoved by a NSW Information and Privacy Commission (IPC) statement that called out the councillors’ decision at the November council meeting. 

Information Commissioner Elizabeth Tydd said that CVC and two other councils had “publicly stated their intention to adopt practices that appear to offend the requirements of the GIPA Act [Government Information (Public Access) Act] and Guideline 1”. 

“The resolutions by councils, as they seek to deviate from clear requirements under the GIPA Act, and justify non-compliance for privacy reasons will be something I consider carefully,” she said. 

The mayor, Jim Simmons, and councillors Toms and Novak (Cr Clancy was absent due to illness) supported the failed rescission motion, which was tabled by Cr Toms and co-signed by councillors Novak and Clancy. 

During questions before debate on the matter, Cr Baker asked if there was “any legislation” that compels CVC to upload the declarations. General manager Ashley Lindsay said “there is” and that CVC would have to provide a “reason why the declarations of interest are not provided on the website”. 

Councillor Lysaught asked if rejecting the rescission motion would constitute “any formal breach” of regulations. Mr Lindsay said he had received “a number of correspondences” from the IPC and that they had “already put us on notice to show cause why [the disclosures] were not on the web”. 

Councillor Toms argued that CVC was duty-bound to comply with what she said was “legislation” and quoted from the IPC’s Information Access Guideline regarding the “mandatory proactive release” requirements” for “open access Information”. 

The guideline and the GIPA Act do, however, provide for exceptions, provided a council can prove uploading the disclosures “would impose unreasonable costs on the council, or if the council determined there was an overriding public interest against disclosing the information”. 

Neither of those concepts have been the subject of a councillor decision.

Councillor Toms said she hoped she had “convinced” the other councillors, “now that the Privacy Commission has written to the general manager with a ‘please explain’”. 

She said she was “a bit disappointed” that she had not seen the letter from the IPC. 

“It should have been shared with councillors,” she said..... 

CVC’s current policy is to make the disclosure available on request in the presence of a CVC officer.

Read the full article here.

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.

When it comes to human rights and civil liberties is it ever safe to trust the junkyard dog or its political masters?

On 18 July 2017, Prime Minister Malcolm Bligh Turnbull announced the establishment of a Home Affairs portfolio that would comprise immigration, border protection, domestic security and law enforcement agencies, as well as reforms to the Attorney-General’s oversight of Australia’s intelligence community and agencies in the Home Affairs portfolio.

 On 7 December 2017, the Prime Minister introduced the Home Affairs and Integrity Agencies Legislation Amendment Bill2017 into the House of Representatives.

This bill amends the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, the Independent National Security Legislation Monitor Act 2010, the Inspector-General of Intelligence and Security Act 1986 and the Intelligence Services Act 2001.

The bill was referred to Parliamentary Joint Committee on Intelligence and Security which tabled its report and recommendations on 26 February 2018.

This new government department on steroids will be headed by millionaire former Queensland Police detective and far-right Liberal MP for Dickson, Peter Craig Dutton.

His 'front man' selling this change is Abbott protégé, former Secretary of the Department of Immigration and Border Protection and current Secretary of the new Department of Home Affairs, Michael Pezzullo. 

The question every Australian needs to ask themselves is, can this current federal government, the ministers responsible for and department heads managing this extremely powerful department, be trusted not to dismantle a raft of human and civil rights during the full departmental implementation.

It looks suspiciously as though former Australian attorney-general George Brandis does not think so - he is said to fear political overreach.

The Saturday Paper, 3-9 March 2018:

On Friday last week, former attorney-general George Brandis went to see Michael Pezzullo, the secretary of the new Department of Home Affairs.

The meeting was a scheduled consultation ahead of Brandis’s departure for London to take up his post as Australia’s new high commissioner. It was cordial, even friendly. But what the soon-to-be diplomat Brandis did not tell Pezzullo during the pre-posting briefing was that he had singled him out in a private farewell speech he had given to the Australian Security Intelligence Organisation on the eve of his retirement from parliament two weeks earlier.

As revealed in The Saturday Paper last week, the then senator Brandis used the ASIO speech to raise concerns about the power and scope of the new department and the ambitions of its secretary. Brandis effectively endorsed the private concerns of some within ASIO that the new security structure could expose the domestic spy agency to ministerial or bureaucratic pressure.

In a regular Senate estimates committee hearing this week, Pezzullo described his meeting with Brandis – on the day before The Saturday Paper article appeared – as Opposition senators asked him for assurances that ASIO would retain its statutory independence once it moves from the attorney-general’s portfolio to become part of Home Affairs.

“I had a very good discussion on Friday,” Pezzullo told the committee, of his meeting with Brandis.

“He’s seeking instructions and guidance on performing the role of high commissioner. None of those issues came up, so I find that of interest. If he has concerns, I’m sure that he would himself raise those publicly.”

Labor senator Murray Watt pressed: “So he raised them with ASIO but not with you?”

“I don’t know what he raised with ASIO,” Pezzullo responded. “… You should ask the former attorney-general if he’s willing to state any of those concerns … He’s a high commissioner now, so he may not choose to edify your question with a response, but that’s a matter for him. As I said, he didn’t raise any of those concerns with me when we met on Friday.”

The Saturday Paper contacted George Brandis but he had no comment.

“ANY SUGGESTION THAT WE IN THE PORTFOLIO ARE SOMEHOW EMBARKED ON THE SECRET DECONSTRUCTION OF THE SUPERVISORY CONTROLS WHICH ENVELOP AND CHECK EXECUTIVE POWER ARE NOTHING MORE THAN FLIGHTS OF CONSPIRATORIAL FANCY…”

Watt asked Pezzullo for assurance there would be no change to the longstanding provisions in the ASIO Act that kept the agency under its director-general’s control and not subject to instruction from the departmental secretary. The minister representing Home Affairs in the Senate, Communications Minister Mitch Fifield, said: “It is not proposed that there be a change to that effect.”

The new Department of Home Affairs takes in Immigration and Border Protection, the Australian Federal Police, the Australian Criminal Intelligence Commission, the Australian Transaction Reports and Analysis Centre, known as AUSTRAC, and ASIO.

ASIO does not move until legislation is passed to authorise the shift, and will retain its status as a statutory agency.

Pezzullo addressed the fears of those questioning his department’s reach. He said some commentary mischaracterised the arrangements as “being either a layer of overly bureaucratic oversight of otherwise well-functioning operational arrangements or, worse, a sinister concentration of executive power that will not be able to be supervised and checked”.

“Both of these criticisms are completely wrong,” he said.

Pezzullo had already described his plans, both to the committee and in a speech he made in October last year, in which he spoke of exploiting the in-built capabilities in digital technology to expand Australia’s capacity to detect criminal and terrorist activity in daily life online and on the so-called “dark web”.

But the language he used, referring to embedding “the state” invisibly in global networks “increasingly at super scale and at very high volumes”, left his audiences uncertain about exactly what he meant.

Watt asked if there would be increased surveillance of the Australian people. “Any surveillance of citizens is always strictly done in accordance with the laws passed by this parliament,” Pezzullo replied.

In his February 7 speech to ASIO, George Brandis described Pezzullo’s October remarks as an “urtext”, or blueprint, for a manifesto that would rewrite how Australia’s security apparatus operates.

Pezzullo hit back on Monday. “Any suggestion that we in the portfolio are somehow embarked on the secret deconstruction of the supervisory controls which envelop and check executive power are nothing more than flights of conspiratorial fancy that read into all relevant utterances the master blueprint of a new ideology of undemocratic surveillance and social control,” Pezzullo said.

As for day to day human resources, financial management and transparent accountable governance, media reports are not inspiring confidence in Messrs. Turnbull, Dutton and Pezzullo.

The Canberra Times, 2 March 2018:

Home Affairs head Mike Pezzullo was one of the first to front Senate estimates on Monday.

It's been up and running for only weeks, but his new department is part of one of the largest government portfolios.

Having brought several security agencies into its fold, and if legislation passes letting ASIO join, the Home Affairs portfolio will be home to 23,000 public servants. 

Mr Pezzullo was also quizzed on the investigation into Roman Quaedvlieg, the head of the Australian Border Force who has been on leave since May last year, following claims he helped his girlfriend - an ABF staff member - get a job at Sydney Airport.

It was revealed the Prime Minister's department has had a corruption watchdog's report into abuse of power allegations for at least five months while Mr Quaedvlieg has been on full pay earning hundreds of thousands of dollars.