Liberal Democratic Party Senator for NSW David Leyonhjelm appears intent on publicly making a fool of himself

This is what Sydney Morning Herald journalist Mark Kenny had to say about Liberal Democratic Party Senator for NSW David Leyonhjelm on 8 August 2016:

David Leyonhjelm is a boorish, supercilious know-all with the empathy of a besser block. And that new Hansonite conspiracy theorist from Queensland? He's an absurdist fringe-dweller and fellow hate-speech apologist. It's a case of wacky and wackier.

Neither of these self-promoting misanthropes would have the first idea about entrenched discrimination. Yet both are experts.

You may disagree with this harsh critique and probably think it unbecoming of a serious media outlet. But offensive to them, it is not. And that's the point.

You see, this gormless duo has declared, with all their angry-white-male certitude, that a verbal abuser cannot cause offence or humiliation. It is all in the mind of the recipient.

In their peerless assessment of the lived experience of all minorities, they have decreed that the fault of hate-speech does not lie with the utterer of a given slur or insult, no matter how cruel, baseless, or humiliating. Rather, the "offence" lies with the recipient - the subject who simply "decides" to be affronted.

Infantile reasoning, but there it is……..

Leyonhjelm, who has been sitting in the Australia senate since July 2014, has reported taken the matter of being described as having angry-white-male certitude to the Human Rights Commission allegedly lodging a complaint under section 18c of the Racial Discrimination Act 1975 – the very section of the act he is keen to see abolished.

This is an excerpt from Section 18C of this act:

RACIAL DISCRIMINATION ACT 1975 - SECT 18C

Offensive behaviour because of race, colour or national or ethnic origin

             (1)  It is unlawful for a person to do an act, otherwise than in private, if:

                     (a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

                     (b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Note:          Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence…..

The senator’s behaviour is suspect because he would be well aware that airing his supposedly offended feelings will probably go nowhere because of Section 18D of that same act:

RACIAL DISCRIMINATION ACT 1975 - SECT 18D

Exemptions

                   Section 18C does not render unlawful anything said or done reasonably and in good faith:

                     (a)  in the performance, exhibition or distribution of an artistic work; or

                     (b)  in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

                     (c)  in making or publishing:

                              (i)  a fair and accurate report of any event or matter of public interest; or

                             (ii)  a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

New Matilda was less than impressed by both Leyonhjelm and Roberts on 16 August 2016:

Liberal Democrats Senator David Leyonhjelm, during an August 2016 

appearance on ABC's Insider's program.

News broke yesterday that Liberal Democrat Senator David Leyonhjelm has lodged a complaint with the Australian Human Rights Commission, alleging he was racially vilified by Fairfax journalist Mark Kenny, who called him an ‘angry white man’. Chris Graham explains why Leyonhjelm will lose, why the current debate around 18c is a ridiculous furphy, and why free speech has never really been under threat……

One Nation’s Malcolm Roberts tried to claim on ABC Insiders recently that 18c was introduced by “Julia Gillard to nobble Andrew Bolt”.

One Nation Senator Malcolm Roberts, 

appearing on ABC’s Insiders program in August 2016.

In fact, 18c was introduced by Keating government Attorney General Michael Lavarch in 1995. That’s three years before Julia Gillard was even elected to parliament, 15 years before she became Prime Minister, and 16 years before Bolt was successfully sued under the 18c provisions. It also happens to be about three or four years before Bolt started writing his rants for the Herald Sun (in the late 1990s).

George Brandis made headlines in 2014 while railing against 18c when he remarked in parliament that ‘everyone has the right to be a bigot’. Which is strictly true, but under Australian law, our Attorney General seemed not to understand that there are so sanctions for being ‘said bigot’.

Since Bolt lost, all the usual suspects have railed against 18c. They need to let it go. Really. So does the media. There is literally nothing to see here. Free speech is not under attack.

You cannot have a rational discussion about 18c without acknowledging the existence of 18d. But that is what conservative whingers keep doing, and the media keep letting them get away with it. It has to stop.

Of all those whingers, David Leyonhjelm is perhaps one of the least interesting, but that brings us neatly back to his boy’s own adventure in the Australian Human Rights Commission, and the other major reason why Leyonhjelm will lose his case.

Ego.

Shortly after news broke of his complaint, Leyonhjelm took to the airwaves to boast that he wasn’t really insulted, offended, humiliated and/or intimidated. He was just trying it on to expose how bad section 18c really was.

The work of the AHRC is extremely important. It has labored under funding cuts by the Coalition, and yet despite this, has still delivered crucial work, such as its inquiry into abuse in immigration detention.

And yet, despite the pressure on the Commission, an elected parliamentary representative appears to have tried to spark a government inquiry purely for sh*ts and giggles…..

Only in the self-indulgent, damn democracy, political climate fostered by the Abbott & Turnbull governments.......

Only in the self-indulgent, damn democracy climate prevailing in the lead-up to the 2016 double dissolution federal election would a registered political party have considered endorsing a candidate with this legal history……

Rod Culleton

Photograph: Channel Nine

The Sydney Morning Herald, 8 August 2016:

In Armidale Local Court on Monday afternoon, Magistrate Michael Holmes granted Culleton's application, and annulled the larceny conviction, which was made when he failed to appear in court in March.

Senator Culleton will fight the larceny charge, after pleading not guilty.

Mr Holmes adjourned the case to September 12 for mention to fix a hearing date.

He told the court if the matter "was short" he could deal with it on that day.

Mr Holmes told Culleton to keep in contact with his solicitor, and dispensed his bail, which was granted by police following his arrest.

Mr Holmes told the court he was happy to deal with the matter, and had read all the files.

He also referenced Senator Culleton's "colourful letter" which was sent to the court.

Fairfax Media understands the letter labelled the Armidale court as a "kangaroo court".

It's now expected Senator Culleton's district court challenge against the conviction, set down for next week in Armidale, will be withdrawn.

The Guardian, 8 August 2016:

New One Nation senator Rodney Culleton is in police custody after turning himself in over an outstanding warrant related to his failure to appear in a NSW court to answer larceny charges.

A NSW Police spokesman confirmed a man was being dealt with by police in Armidale and would be bailed to appear before the local court on Monday afternoon.

The West Australian senator was convicted in his absence earlier this year for stealing a tow truck key from a driver who was trying to repossess one of his company cars in 2014.

He's seeking to have that conviction annulled.

Larceny carries a maximum penalty of five years jail, which could deem him ineligible to be a senator.

The constitution says anyone convicted of crime that has a punishment of at least one year's jail can't be a member of parliament.

Senator Culleton is also awaiting trial in WA later this month - the week before parliament begins - after he was arrested and charged for allegedly stealing a car being used by receivers from RSM Bird Cameron as they began foreclosure proceedings at a friend's farm.

The senator won the 11th spot on the WA ballot.

He is expected to appear before Armidale Local Court again after 1400 (AEST) on Monday.

Financial Review, 7 August 2016:

For someone who apparently prides himself on being a defender of the nation's farmers, new One Nation Senator-Elect Rodney Culleton sure has a strange way of showing it.

ASIC documents show Culleton has appointed an administrator to his company, DEQMO Pty Ltd, which will have the effect of avoiding a wind-up application to be heard in the NSW Supreme Court today (Monday).

The petitioning party is Armidale farmer and mill owner, Jack Vivers, who says he is owed slightly more than $42,500 by Culleton, a former business associate. Money he will have much harder time getting back now that Culleton has put DEQMO into administration.

This is the same Rodney Culleton, it is worth noting, who took part in a 60 Minutes program last year called "Fighting Back" about his battle to retain his WA property and who describes himself on the One Nation website as a defender of Aussie farmers.

And the same Rod Culleton who may not finally be permitted to take his seat in the Senate pending the outcome of a larceny case, in which he is implicated.

Inside Story, 3 August 2016:

In fact, the circumstances of his offence appear to have been relatively trivial: he was said to have stolen the key of a tow truck – a key worth $7.50 – in an effort to prevent the repossession of a vehicle he was leasing. Moreover, he was convicted in his absence because he failed to appear in court, and an appeal is now pending. Yet, at least until his appeal is heard, he is currently “subject to be sentenced” and is therefore “incapable of being chosen.”

It seems to have been assumed that, once it is recognised that Culleton is “incapable of being chosen,” section 15 of the Constitution will come into play. Under that provision, his Senate seat would be declared vacant. This would create a casual vacancy to be filled by the WA parliament, which would be required to nominate someone from the same political party – that is, another One Nation candidate. In the ballot paper on 2 July, the One Nation ticket listed Rodney Culleton first, his friend Peter Georgiou second, and his wife Ioanna Culleton third. So presumably one of these would be chosen.

But this assumption is wrong. As the authoritative explanation in Odgers’Australian Senate Practice makes clear, the mechanism in section 15 comes into play only when a senator who was validly elected “becomes disqualifiedafter the completion of the election process.” What happens when a senator “is found to have been disqualified at the time of election” is different. The election of that senator is totally void; the relevant seat in the Senate remains unfilled and the failure to fill it must be remedied by a recount.

Again, it seems to have been assumed that in this event, once Culleton was eliminated as “incapable of being chosen,” the votes that had been accumulated for him would simply be transferred down the line to the second candidate on the One Nation ticket, and if necessary to the third. But while this might be a realistic assessment of the probable result, it would not be so easy to achieve that result.

The distribution of preferences in Western Australia meant that the ballot papers had to be counted 539 times; and it was only on the 539th count that Culleton achieved his quota. The other two One Nation candidates had already been excluded much earlier – Ioanna Culleton by count 153, and Peter Georgiou by count 157. Thus, in order to ensure that Rodney Culleton’s votes could be transferred further down the ticket, it would be necessary to rework the entire distribution at least from count 153, and the outcome of such a redistribution could no longer be predicted with confidence.

It happens that Culleton is also awaiting trial in Western Australia on a more serious stealing charge (with a maximum penalty of seven years’ imprisonment). If he were able to take his seat, and was later convicted on that charge, then the procedure in section 15 of the Constitution would come into play. But that is irrelevant to the fact that Culleton is now “incapable of being chosen.”

As it stands, the Australian Electoral Commission has declared a candidate to be elected who is in fact “incapable of being chosen.” Strictly speaking, that announcement is unconstitutional. Presumably it might be possible to avoid such an outcome if the AEC had some mechanism for checking, before the distribution of preferences begins, whether all the nominated candidates are “capable of being chosen.” But there seems to be no such mechanism.

Excerpt from Mills Oakley, Granting yourself a security interest: worthwhile or worthless?, October 2014:

In August 2008 Macquarie Leasing Pty Ltd (Macquarie) entered into a chattel mortgage agreement with Elite Grains Pty Ltd (Elite) for the purchase of a Prime Mover (Truck).

In 2012 Elite defaulted under the agreement, and Macquarie demanded return of the Truck. Elite refused, so Macquarie commenced and was successful in proceedings against Elite and Rodney Culleton (Culleton), the sole shareholder and director of Elite.

On 7 August 2014 the Truck was sold at public auction, and simultaneously DEQMO Pty Ltd (DEQMO), of whom Culleton was the sole director and shareholder, registered a security interest in the Truck on the PPSR, with the effect that Macquarie could not pass clear title to the purchaser.

Macquarie then served an amendment demand on DEQMO pursuant to the PPSA demanding that DEQMO’s registration be removed. No response was received. Macquarie then initiated these proceedings seeking orders that:

DEQMO’s security interest was void;

DEQMO’s security interest be removed from the PPSR;

DEQMO be restrained from re-registering any interest on the PPSR; and

DEQMO and Culleton pay Macquarie’s costs.

Decision

Rein J granted the orders sought by Macquarie. The evidence put forward by DEQMO failed to establish the basis of the security interest, as Culleton was more concerned with the manner in which the Truck was repossessed and the conduct of its sale.

In light of this evidence (or lack of), Rein J found a number of reasons why DEQMO’s claimed interest was invalid. However, the key basis on which Rein J held the security interest was void was that the claimed interest was one given by DEQMO to DEQMO, as a person or company cannot give a security interest to itself, as per section 12 of the PPSA.

Conclusion

This decision highlights the importance of ensuring that any registration on the PPSR has a proper foundation to support it. The judgment of Rein J makes it clear that if a company or person purports to grant a security interest to itself, then such a registration will be invalid. If the security interest is in fact an ownership interest, such registrations do not secure “payment or performance of an obligation” as required by section 12, and can be removed under the provisions in Part 5.6 of the PPSA.

PERMANENT CUSTODIANS LTD -v- ELITE GRAINS PTY LTD [2014] WASC 495

In which a bankrupt Rodney Norman Culleton was involved as second defendant (bankruptcy declared October 2014).

Court transcript here.

Federal Court of Australia, Bankruptcy Guide:

What happens if you are made bankrupt?

If the Judge or Registrar makes a sequestration order a trustee will be appointed to manage your financial affairs. Your trustee will notify you of your bankruptcy in writing. The trustee will explain his or her role and your responsibilities as a bankrupt. The trustee will also give you a statement of affairs which you must complete and file with the Official Receiver (AFSA). Your period of bankruptcy runs for three years from the date you file your statement of affairs with AFSA.

There are several legal outcomes of your bankruptcy; for instance:

*You will be released from responsibility for most of your existing debts. However, the trustee can sell your assets or property to pay your creditors.

*Any house or your share of a house that you own may be sold to pay your creditors. 

*Any assets which you acquire while you are bankrupt may be sold by the trustee.

*You must not obtain credit from another person, or pay for goods or services by cheque for more than a specified amount without telling the person that you are bankrupt. The credit limit is updated quarterly, for an up-to-date figure contact AFSA.

*If you run a business while you are bankrupt you must keep all proper accounts showing your business transactions and financial position.

There are other consequences of becoming bankrupt. 

COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 44

Disqualification

                   Any person who:…….

 (iii)  is an undischarged bankrupt or insolvent;……

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

ASIC Insolvency Notices, 2013:

NOTICE OF APPLICATION FOR WINDING UP ORDER

Company details

Company:	Elite Grains Pty Ltd
ACN:	091 599 941

An application for the winding up of Elite Grains Pty Ltd was commenced by the plaintiff Jameson Farm Pty Ltd and continued by Komatsu Forklift Australia Pty Ltd on 03/05/2013 and will be heard as set out below.

New Politics in the Pub, Court House Hotel in Mullumbimby, Wednesday 27 July 2016 from 6.30pm

Echo NetDaily, 20 July 2016:

NSW Council for Civil Liberties (CCL) president will be guest speaker at New Politics in the Pub on Wednesday July 27 from 6.30pm at the Court House Hotel in Mullumbimby.

The topic of discussion by president Stephen Blanks will be the recently introduced anti-protest laws by the Baird Liberal/Nationals government that radically extends police powers against opponents of mining projects and heavily fines those who ‘lock on’ to mining equipment.

It’s called Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 and only passed with votes from two crossbench parties: the Shooters and Fishers Party and Fred Nile’s Christian Democratic Party.

The law immediately sparked protests in front of parliament house, and has reverberated throughout the state.

It is also considered the result of the close relationship that exists between Liberal and National Party politicians, their staff and the mining industry.

If this law existed at the Bentley Blockade near Lismore in 2014, neighbouring farmers and residents could have been arrested as they ‘locked on’ to the equipment.

This was owing to the government’s inaction to intervene over the known toxicity that accompanies CSG mining, and its potential to poison aquifers. Land values are also known to plummet.

The laws have been described by lawyers and as an assault on democracy and a civil society.

According to The Law Society, the law would, ‘seriously interfere with the liberties of NSW residents.’…..

See:  INCLOSED LANDS, CRIMES AND LAW ENFORCEMENT LEGISLATION AMENDMENT (INTERFERENCE) ACT 2016 at 

http://www.austlii.edu.au/au/legis/nsw/consol_act/ilcalelaa2016658/

QLD Western Downs Alliance takes Turnbull Government to court over requirement to consider water trigger legislation

NSW Environmental Defender’s Office, 24 June 2016:

Western Downs Alliance v Minister for the Environment & Santos Limited

We are acting for Western Downs Alliance in its challenge to a decision by the Federal Minister for the Environment to approve the Santos GLNG Gas Field Development Project in Queensland.  

This is the first CSG case brought under national environmental laws to challenge the application of the Water Trigger, and is an important test case.

The Minister’s approval allows Santos to develop 6,100 coal seam gas (CSG) wells across approximately 1 million hectares of land in the Surat Basin in South-Central Queensland. This represents a substantial expansion on the 2,650 CSG wells approved for an overlapping (but significantly smaller) area in 2010.

Over the project’s predicted life of more than 30 years, Santos is proposing to extract up to 219 billion litres of water, with potential impacts on the Great Artesian Basin. The Environmental Impact Statement (EIS) for the project outlines proposed methods of managing the extracted water, one of which is to release water from the wells into surface water systems such as rivers and lakes.

Western Downs Alliance argues that the approval of the project was unlawful because the Minister did not properly assess the project’s impacts on surface water.

The EIS notes that the project is likely to have a number of surface water impacts, including:

* increased sedimentation;

* erosion of stream banks;

* surface water contamination, including toxicity to aquatic ecosystems; and

* altered surface water flow.

In November 2014, the Independent Expert Scientific Committee, which was set up in 2012 to provide scientific advice to decision makers on the impact that coal seam gas and large coal mining development may have on Australia's water resources, advised the Minister that there is ‘considerable scientific uncertainty about potential impacts [of this project] on surface water and groundwater and associated ecosystems’. The Committee specifically stated that the potential impacts of discharging water into the Dawson River, including ecological impacts, should be assessed.

This case raises the question of what is required of the Minister under the ‘Water Trigger’, which was added in 2013 as a ‘matter of national environmental significance’ to Australia’s national environmental law, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Under the Water Trigger, any proposed CSG development that has, will have, or is likely to have a significant impact on a water resource requires comprehensive assessment and approval at a national level by the Minister under the EPBC Act.

Western Downs Alliance argues that the Minister incorrectly formed the view that it was not necessary to assess the impacts of releasing CSG water to surface waters as part of the project approval, and that as a result the approval was unlawful.

The case has been listed for a case management hearing in the New South Wales Registry of the Federal Court of Australia on 27 June 2016.

We are grateful to barristers Geoffrey Kennett SC and Ashley Stafford for their assistance in this matter.

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Clarence Valley Council will pursue doof and rave hosts - "no ifs, buts or maybes"

June 16, 2016

Rave party property owner cops maximum fine

THE Clarence Valley Council has promised to take legal action against any landowner who hosts a ‘doof’, ‘rave’ or similar party on their property without proper approval.

Council this week issued a $3000 fine (the maximum allowable) against a property owner who hosted an unauthorised rave party at Newton Boyd where 24-year-old David Gallagher

of Green Pigeon died.

Council general manager, Scott Greensill, said council would go after any landowner who hosted similar events without approval.

“Rules are in place in order to make sure public events are safe, that they have proper medical facilities, proper effluent disposal, traffic management, safe food service and a range of other issues,” he said.

“We will not allow people to flout rules that govern people’s safety.

“If landowners think they can host illegal events like this without penalty they are completely misguided.

“If they choose to break the law we will prosecute, no ifs, buts or maybes.

“If you’re a landowner in one of these remote locations and you are approached by these operators, tell them you’re not interested and notify police. If you don’t, you could face severe penalties.”

Mr Greensill said council’s investigations into the weekend event were continuing and it would work with other agencies, including police, to determine what other sanctions could be applied.

“We make no apology for what some might consider a heavy-handed approach,” he said.

“A young person who attended this latest festival is dead and their family grieving. We will do what we can to make sure other families don’t have to go through the same pain.”

Australian Federal Election 2016: Labor candidate for Page Janelle Saffin announces a Shorten Government will repair Coalition budget cuts to community legal centres

Labor Media Release, Friday 10 June 2016:

SAFFIN ANNOUNCES $300,000 FOR NORTHERN RIVERS COMMUNITY LEGAL CENTRE

Janelle Page, Federal Labor Candidate for Page, today said a Shorten Labor Government would provide $300,000 over three years to ensure the Northern Rivers Community Legal Centre has the funds to continue helping people in need.

The Federal Budget confirmed that the Liberal-National Government would cut funding for Community Legal Centres by 30 per cent, however Labor will inject a total of $43 million into the sector over three years from 1 July 2017.

Ms Saffin said Labor understood how important the Northern Rivers Community Legal Centre was to people in the seat of Page.

“Access to legal assistance when you need help is as important as access to Medicare when you’re sick. That’s why Community Legal Centres are such an important local service.

“The Northern Rivers Community Legal Centre helps local people deal with a wide range of legal issues – from tenants’ rights, to domestic violence and family law disputes.

“Labor will ensure that CLCs can continue their vital work helping people to navigate their way through our complex legal system.”

Ms Saffin said the Liberal-Nationals attack on Community Legal Centres was another example of how local MP Kevin Hogan had failed to needs of regional communities.

“Mr Hogan has been missing in action. He’s been too busy defending the city-centric Liberal-Nationals to defend local community legal services.

“Labor will ensure the Northern Rivers Community Legal Centre can keep its doors open and go on providing vital services to the people of the North Coast and Northern Rivers.”

Ms. Saffin told The Daily Examiner on the same day:

"Access to legal assistance when you need help is as important as access to Medicare when you're sick. That's why Community Legal Centres are such an important local service," Ms Saffin said.

"The Northern Rivers Community Legal Centre helps local people deal with a wide range of legal issues, from tenants' rights, to domestic violence and family law disputes.

"Labor will ensure that CLCs can continue their vital work helping people to navigate their way through our complex legal system."

Ken Beilby, the Principal Solicitor for the Northern Rivers Community Legal Centre in Lismore said the funding will mean they do not have to shut offices in the Richmond Valley in Casino and the Tweed Valley office in Murwillumbah.

"It's going to help us maintain front line services to disadvantaged clients in our region," Mr Beilby said.

"One of the main priorities of our centre is women experiencing domestic violence and providing early intervention.

"Our ability to continue assisting vulnerable clients will be greatly diminished without those funding cuts being restored."

Australian Attorney-General George Brandis lists some common breaches of the rights, freedoms and privileges recognised by the common law

Australian Attorney-General and Liberal Senator George Brandis has helpfully listed common breaches of a citizen’s rights, freedoms and privileges – the same rights, freedoms and privileges which coincidentally have been eroded in federal legislation enacted since 2001.

Excerpts from the Traditional Rights and Freedoms—Encroachments by Commonwealth Laws (ALRC Report 129) tabled on 2 March 2016:

Review of Commonwealth Laws for Consistency with Traditional Rights, Freedoms and Privileges

I, Senator the Hon George Brandis QC, Attorney-General of Australia, having regard to the rights, freedoms and privileges recognised by the common law, REFER to the Australian Law Reform Commission (ALRC) for inquiry and report pursuant to section 20(1) of the Australian Law Reform Commission Act 1996 (Cth):

· the identification of Commonwealth laws that encroach upon traditional rights, freedoms and privileges; and

· a critical examination of those laws to determine whether the encroachment upon those traditional rights, freedoms and privileges is appropriately justified.

For the purpose of the inquiry ‘laws that encroach upon traditional rights, freedoms and privileges’ are to be understood as laws that:

· reverse or shift the burden of proof;

· deny procedural fairness to persons affected by the exercise of public power;

· exclude the right to claim the privilege against self-incrimination;

· abrogate client legal privilege;

· apply strict or absolute liability to all physical elements of a criminal offence;

· interfere with freedom of speech;

· interfere with freedom of religion;

· interfere with vested property rights;

· interfere with freedom of association;

· interfere with freedom of movement;

· disregard common law protection of personal reputation;

· authorise the commission of a tort;

· inappropriately delegate legislative power to the Executive;

· give executive immunities a wide application;

· retrospectively change legal rights and obligations;

· create offences with retrospective application; 

· alter criminal law practices based on the principle of a fair trial;

· permit an appeal from an acquittal;

· restrict access to the courts; and

· interfere with any other similar legal right, freedom or privilege.

Scope of the reference

In undertaking this reference, the ALRC should include consideration of Commonwealth laws in the areas of, but not limited to:

· commercial and corporate regulation; · environmental regulation; and

· workplace relations.

The full report can be read here.

Baird Government continues to betray healthy biodiversity in rural and regional New South Wales

It would appear that there will be barely a protection left to recognised biodiverse regions in New South Wales such as the Northern Rivers once the blinkered Baird Coalition Government has its way…….

EDO NSW (Environmental Defender’s Office), 3 May 2016:

Our top 10 concerns with the draft Biodiversity Conservation Bill 2016 and Local Land Services Amendment Bill

The NSW Government’s proposed biodiversity legislative and policy package removes many of NSW’s long-held environmental protections, and represents a serious backward step for environmental law and policy in New South Wales. Here are EDO NSW's top 10 concerns with the draft Biodiversity Conservation Bill 2016 and Local Land Services Amendment Bill.

1. Repeal of the Native Vegetation Act and environmental standards that go with it

The Local Land Services Amendment Bill replaces the Native Vegetation Act and its world class Environmental Outcomes Assessment Methodology (EOAM) with self-assessable Codes, exemptions and discretionary clearing. There are no clear environmental baselines, aims or targets. There is no ban on broadscale clearing, no mandatory soil, water and salinity assessment, and no ‘maintain-or-improve’ standard to ensure environmental outcomes – either at the site scale or at the landscape scale. Provisions are less stringent, less evidence-based, less accountable, and are likely to result in significant clearing increases in NSW.

2. Heavy reliance on flexible and indirect biodiversity offsets

The proposed scheme is heavily reliant on ‘offsetting’ biodiversity impacts (by managing other areas for biodiversity) rather than preventing the impacts, and adopts the standards of the problematic Major Projects Offsets Policy. The Biodiversity Assessment Methodology (BAM) is therefore significantly weakened, for example, direct ‘like-for-like’ offsetting requirements are relaxed and can be circumvented. The option to pay money in lieu of an actual offset will result in net loss of certain threatened species and communities. Offset areas and set asides may be further offset later on rather than actually protected in perpetuity.

3. Conservation gains aren’t guaranteed in law, but dependent on funding decisions

The proposed regime places almost complete reliance on political, budgetary decisions (which may be short-term) to achieve biodiversity gains, rather than on protections in the Bill to prevent continued biodiversity decline. We strongly support incentives and stewardship payments to rural landholders to conserve and protect environmental values, but funding must be supported by rules and targets that stop valuable biodiversity being cleared in both rural and urban areas.

4. Uncertainty and discretion

While great reliance is placed on a ‘single scientific method’ to inform land-clearing decisions, there is discretion as to whether a consent authority actually has to apply the results. Offset requirements may be discounted based on other subjective considerations. There is even some discretion around “red lights”, i.e., where clearing and development could cause serious and irreversible biodiversity loss. SEPPs, Regulations and variation certificates provide for unnecessary exemptions from standard pathways. This will create uncertainty and loopholes instead of clarity and consistency.

5. Public participation is not mandatory

Decisions and instruments are not invalid even if consultation processes aren’t followed. Public consultation may be based on summary documents, and issues raised in submission may be ‘summarised’ by proponents instead of directly considered by decision-makers. The proposed public register provisions are far less detailed (for example, in terms of providing information about vegetation clearing and set asides).

6. Administration of a complex regime

The logic of repealing three and a half Acts to create one coherent Act and scheme is actually resulting in a carving up of responsibilities into the Local Land Services Act, Environmental Planning & Assessment Act, the new Biodiversity Conservation Act – and associated regulations, SEPPs and Codes. The NSW Government is departing from a key recommendation of the Independent Biodiversity legislation Review Panel – i.e., that land clearing involving a change of use should be assessed under planning laws – and is instead, handing the vast majority of clearing approvals to the Local Land Services which currently do not have the resources or expertise to carry out these functions. Furthermore, how the legislation will be applied will depend on future mapping, which is likely to be problematic and highly contested.

7. Contradictory legislation

On one hand, the Biodiversity Conservation Bill carries over provisions of our current threatened species laws (like listing threatened species and ecological communities by a scientific committee), while at the same time theLocal Land Services Bill will increase known threats to those species. The Bills fail to tackle the conflict between reducing the impact of listed key threatening processes to biodiversity, and permitting more land clearing via self-assessed Codes and discretionary development applications. For example, the Biodiversity Conservation Billlists “loss of hollow bearing trees” as a key threatening process, while at the same time, the Local Land Services Bill allows clearing of paddock trees without approval.

8. Lower environmental standards for ‘Biocertification’ at the landscape scale

The revised Biocertification scheme for large areas of land removes the requirement to ‘maintain or improve environmental outcomes’. Instead, it applies the BAM and imposes a broad discretion to impose conditions. It replaces the current positive test with a negative one - to avoid ‘serious and irreversible’ environmental outcomes as a result of biocertification. Removing the current test contradicts the Bill’s aim to conserve biodiversity and ecological integrity at regional and State scales.

9. Uncertain compliance, enforcement, monitoring and reporting

The NSW Government has been unable to estimate how much landclearing will occur under the new relaxed system – in particular, how much clearing will occur under the new self-assessable codes. The proposed legislation includes updated offences and penalties, but there is no indication who will undertake compliance and enforcement responsibilities. The Biodiversity Conservation Bill’s objects include improving and sharing knowledge (including drawing on local and Aboriginal knowledge) and the Biodiversity Panel’s report hinged on high-quality environmental data, monitoring and reporting. However, the legislation does not set clear requirements for these essential elements so it will be difficult to determine how much biodiversity is being lost under the relaxed rules.

10. Missed opportunities for key reforms

Rewriting our biodiversity laws is a once in a generation opportunity to put in place laws that will actually address the most significant threats to biodiversity. Unfortunately, the proposed legislation does not address necessary and important reforms, for example to address cumulative impacts and climate change impacts of clearing (and potential carbon gain). Instead, the Bill carries over deficiencies of current system for example: exemptions and wide discretion for projects with the biggest impacts (State Significant Development), vulnerable ecological communities are excluded from the definition of threatened species, and mining is still permitted in areas that supposedly offset previous losses and areas of outstanding biodiversity value.

Further analysis will be published on our website shortly and discussed at upcoming seminars and workshops.

The package will be on public exhibition until Tuesday 28 June 2016. During this time community members are able to make submissions. We’ll be running workshops and seminars across NSW in June and providing resources to help communities have their say. If you’re interested in making a submission and getting involved, please sign up to our weekly eBulletin.

Our resources and updates feature on our web page dedicated to the reforms.