Tweet of the Week

Planning law in NSW:

1. Independent Commission rejects a coal mine because it doesn’t stack up environmentally or economically

2. Minerals Council tells Govt to overhaul the system

3. NSW Government proposes changes to the law and orders a review of the Commission https://t.co/PIb1DYI7ND

— Elaine Johnson (@ElaineEDO) October 5, 2019

And the climate change denying madness continues in New South Wales

All those political donations to the Liberal and National parties seem to be paying off for the Minerals Council of Australia – $28,800 in 2015-16, $50,645 in 2016-17, $88,700 in 2017-18.

Cheap at twice the price if this comes to pass…….

The Guardian, 2 October 2019:

The New South Wales government is considering legislation that could limit the ability for planning authorities to rule out coalmines projects based on the climate change impact of emissions from the coal once it is burned.

It comes after a campaign from the NSW Minerals Council over decisions that have referenced the impact of “scope 3 greenhouse gas emissions” as a reason for either rejecting a mining project entirely or for imposing conditions on it.

For a coalmine, scope 3 greenhouse gas emissions are from the burning of the coal after it is sold into the market, including overseas.

The planning minister, Rob Stokes, said it was “not appropriate for state governments to impose conditions about emissions policies in other countries”.

He said the government was looking at a range of options, including legislation or a new guideline for how planning authorities should factor scope 3 greenhouse gas emissions into the assessment process.

The recent decisions include the NSW land and environment court’s rejection of the Rocky Hill coalmine in February, which cited the impact the mine would have on climate change, including through the burning of coal in other countries, at a time when “a rapid and deep decrease” in global emissions was urgently needed.

In August, the NSW Independent Planning Commission approved the expanded United Wambo coal project near Singleton but as a condition said the coal could only be exported to countries that have ratified the Paris agreement.

In September the commission rejected the development of a greenfield coalmine in NSW’s Bylong Valley, citing the impact the mine would have on groundwater, agricultural land and on climate change.

The NSW Minerals Council has since launched attack ads that target the planning system for “failing the people of NSW”.

In a statement last week, the council’s chief executive Stephen Galilee said the decision to launch a campaign came after months of “warnings to the minister for planning and others in the government about the risk of the planning system to jobs and investment”.

He said the situation had reached “crisis point” with the Bylong Valley decision.

Stokes said the Minerals Council was one of the stakeholders the government was consulting in its development of a policy on scope 3 emissions.

“We are working with key stakeholders, including the federal government, NSW Minerals Council and consent authorities, to develop a clear policy direction as quickly as possible to provide certainty to the community, industry and investors,” he said.

“We are looking at a range of options including legislation.”

The consent authorities in this instance include the NSW land and environment court.

But environment groups are warning the government not to bow to pressure from the mining industry. Lock the Gate said the impact of downstream greenhouse gas emissions “is arguably the most complicated, severe and lasting environmental impact of NSW’ export coalmines”.

Lock the Gate coordinator George Woods said the public should also have a say in how planning decisions address the climate consequences of coal developments and that should be done through a public hearing process run by the independent planning commission.

“It’s disappointing and frankly dangerous for the planning minister to narrowly consult only with the mining industry on a matter of profound importance like this,” she said.

“The mining industry has flexed its political muscle but the government really needs to address the bigger issue and the public sentiment on this.”

Elaine Johnson, the principal lawyer with the Environmental Defenders Office of NSW, which represented Groundswell Gloucester in the Rocky Hill case, said if the government was planning changes to the way planning authorities consider scope 3 emissions, the consultation for that should be broad and include other key stakeholders such as community and environment groups.

“The land and environment court, in the Rocky Hill decision, has confirmed that it is entirely appropriate for decision-makers to impose conditions on projects that will contribute to dangerous climate change in a planning context,” Johnson said.

She said that was recognised by the independent planning commission in the United Wambo and Bylong Valley assessments.

“We would also say that in 2019 we are making planning decisions in a context which includes advice from the world’s best scientists that we’re approaching a climate emergency,” she said.

“If global emissions continue to rise and if serious action is not taken at all levels of government, by communities and business, the impacts of dangerous climate change will be catastrophic.”...... [my yellow highlighting]

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Debt collector used by DHS-Centrelink to chase unproven robodebts being sued by Australia’s consumer watchdog for a raft of coercive and unconscionable practices

IT News, 24 September 2019: 

A debt collector recently awarded a $3.3 million contract by the Department of Human Services (DHS) to chase money for Centrelink is wholly owned by a company being sued by Australia’s consumer watchdog for a raft of coercive and unconscionable practices. 

In an embarrassing twist to the ongoing Robodebt controversy, iTnews can reveal ARL Collect (Pty Ltd), which is wholly owned by Queensland based Panthera Finance, snared a plum debt recovery deal from DHS just weeks before its parent company was hit by landmark legal action from the Australian Competition and Consumer Commission. 

The ACCC’s case against Panthera accuses the firm of coercing payments from people – including identity fraud victims – for bills they did not actually owe. 

The direct ownership link between the two companies, which technically are separate legal and financial entities, raises fresh questions around the adequacy of vetting and due diligence surrounding government outsourcing deals, especially those dealing with vulnerable people. 

The ACCC’s action against Panthera, lodged in the Federal Court on 24th July this year, sets out an appalling litany of allegations related to undue harassment and coercion, unconscionable conduct and false and misleading representation to consumers. 

They include forcing money from identity fraud victims by using credit default listings as leverage and follow consumer complaints made about Panthera. 

According to Department of Finance records, DHS published notification of the $3.3 million ARL Collect contract on 29th July; however the contract period is listed as running from 1st July 2019 to 30th June 2020, indicating the tender was let prior to commencement of action by the ACCC. 

The ACCC’s allegations against Panthera, ARL Collects’s owner, all stem from commercial recovery actions, namely attempts to collect on contested bills issued by utilities AGL, Origin Energy and Telstra, raising serious questions of governance and corporate culture. 

A particularly embarrassing coincidence for the government and DHS is that all the examples put forward to the court by the ACCC in its allegations arise from payment demands made by Panthera for bills that were not actually owed and actively disputed by those hit by recovery actions. 

The revelations that the ultimate owner of DHS’s contracted debt collector is a current target of regulatory action is another headache for the government as it vigorously defends its data matching-reliant enforcement regime. 

A class action now in the works against Robodebt being mounted by Gordon Legal also broadly makes its case along the lines of an unreasonable burden of proof being foisted on people labelled debtors, while organisations claiming to be creditors get away with questionable claims. 

The Department of Human Services, its minister Stuart Robert and Prime Minister Scott Morrison have steadfastly maintained welfare overpayment recovery mechanisms are subject to due administrative process, a stance that has done little to quell criticism of Robodebt, which has now become a political weapon. 

Irrespective of the politics, the ACCC’s case against Panthera is highly significant because it spotlights the poor conduct of some collection agencies. 

It also reveals how receivables ledgers of questionable data accuracy are on-sold and the way legitimately disputed debt is treated. 

And it goes deep into the hardball culture and often high pressure tactics of the darker corners of the collections industry, a sector that has been struggling to reform its image......

In one of the examples, a Queensland woman anonymised as “Witness A” disputed a $378 debt for an Origin electricity bill racked up under her name for an address in New South Wales where the woman had never lived. 

She had also never been a customer of Origin. After filing a complaint with the Australian Cybercrime Online Reporting Network (ACORN) and supplying Panthera with the case reference number the debt collector still pursued her. 

“Witness A again informed them that she had never lived in NSW, she had provided an ACORN reference number and stated that she had never received Centrelink payments in her life, referring to the Centrelink deductions recorded on the Origin bills provided to her,” the ACCC court documents state. 

“Witness A provided Panthera with the details of the person the police had informed her was responsible for the Origin Debt, including that the person still resided at the NSW premises to which the electricity was supplied, and also with the relevant police officer’s contact information,” the ACCC’s court documents continue. 

Despite this, Panthera continued asking her for information she just did not have, the ACCC alleges.....

In another case a man dubbed "Witness B" told Panthera that he believed a Telstra mobile broadband account created in his name had been fraudulently obtained. 

Despite a police officer telling Panthera that she was “looking into fraud” in relation to the account “the man still had a credit default listed against his name.” What came next borders on extortion. 

“On 4 April 2017, a Panthera representative called Witness B’s financial advisor and stated that Panthera was aware of Witness B’s dispute and was investigating it, offered to negotiate a payment in order to secure the removal of the default listing and represented that Witness B would need to make a payment of $100 to Panthera in order for the default listing to be removed,” the ACCC’s court documents state. 

“This was in circumstances where the Panthera representative knew that Witness B’s account was in the process of being ‘written off’ by Panthera, but also knew that Witness B needed the default listing removed quickly because he was trying to obtain finance.” 

Even after paying the $100 and Panthera telling the man the default listing had been removed “as at September 2018 Witness B’s credit file still contained a default listing with respect to the Telstra Debt”.......

Read the full article here.

Law Council of Australia not amused by those playing politics with the issue of domestic violence

Law Council of Australia, media release, 23 September 2019: 

Family violence awareness training urged for parliamentarians 

The Law Council has condemned as dangerous suggestions by Senator Malcolm Roberts of One Nation that the family courts are contributing to family violence and called for family violence awareness training for all members of parliament. 

“It is inappropriate to be blaming victims, the courts or judges for any person lashing out and hurting another person,” Law Council President, Arthur Moses SC, said today. 

“Politicians must be careful not to use words that may incite those currently engaged in the system or dissatisfied with a court outcome to engage in violence.” 

Mr Moses labelled as “irresponsible and plain stupid” comments by made One Nation Senator Malcolm Roberts blaming the family law system for violence by men. 

“These comments could incite violence against partners, children or judges of those courts, or provide excuses for some men to blame anyone else but themselves for hurting a partner or child. The comments of Senator Roberts will undermine, not assist, concerns being raised by some members of the community for law reform as to how custody matters can be dealt with in a less adversarial manner.” 

“The Joint Select Committee Inquiry announced this week provides a critical opportunity for Parliament to examine holistic options to reform the system, including recent recommendations by the Australian Law Reform Commission. The Law Council has offered its support to the Inquiry but it needs to be free from bias and pre-determined outcomes.” 

“But let me be clear – the Inquiry will have no hope of achieving any meaningful reform and will quickly lose support if it is overshadowed by these disgraceful comments or misguided by myths. Reform has to be based on facts not slogans.” 

“This Inquiry must be about finding long-term solutions to a crippled family law system. This will assist vulnerable children, mothers, fathers, families and victims of family violence. Not apportioning blame or seeking to excuse the inexcusable. 

“Cases of family violence are serious matters to be heard and determined by the courts and prosecuted by the police, not Parliament. If parties are unhappy with outcomes, these can decisions reviewed. 

“I acknowledge Home Affairs Minister Peter Dutton and Attorney-General Porter have said earlier comments reported by Senator Hanson about the raising of domestic violence issues in family cases were wrong. The reported comments by the Senator were plainly wrong.” 

“However, Prime Minister Morrison, Attorney-General Porter and Committee Chair Andrews now need to condemn these latest remarks by Senator Roberts in the strongest possible terms and ensure the Inquiry is conducted in a manner that is safe and respectful. Otherwise, the situation will quickly deteriorate and this Inquiry will harm not help children, mothers and fathers” Mr Moses said. 

“The Law Council strongly recommends all parliamentarians including those who participate in this Inquiry be provided with family violence awareness training at the outset to help them undertake their important roles in the Inquiry but also considering any recommendations from the Inquiry.

Publishing video footage of animal cruelty could now incur penalties of up to one year in an Australian prison.

The Northern Star, 16 September 2019, p.6:

Animal rights charity Aussie Farms have slammed the passing of a new ‘ag-gag’ law that introduces a criminal charge for “inciting trespass onto agricultural land”.

Several Northern Rivers agricultural businesses were targeted, including Northern Co-operative Meat Company, when Aussie Farms published a map online and called for activists to collect and upload evidence of animal abuse.

But the new law includes simply publishing footage of animal cruelty, or publishing a map of factory farms and slaughterhouses where such cruelty is known to occur, regardless of whether incitement to trespass was intended by the publisher, and regardless of whether the cruelty was legal or illegal.

It follows years of covertly-obtained footage being broadcast to the public by Aussie Farms and other animal protection organisations, revealing widespread practices such as the use of gas chambers in pig slaughterhouses, the live shredding of male baby chicks in the egg industry, and most recently, the slaughter of male baby goats at a high profile Victorian dairy farm.

Publishing such footage now could incur penalties of up to one year in prison.

Executive director Chris Delforce said “consumers had a right to know about the cruelty occurring ... within Australian animal agriculture” and the new law was “designed to limit the public’s ability to see what’s happening inside farms and slaughterhouses”......

On 12 September 2019 the Australian House of Representatives and the Senate passed the Criminal Code Amendment (Agricultural Protection) Bill 2019.

It passed the lower house by a majority of just 8 votes, with Labor, Independent, Greens and Center Alliance MPs voting against the bill becoming law.

https://www.aph.gov.au/Parliamentary_Business/Chamber_documents/HoR/Divisions/details?id=732

Barnaby Joyce has all the tact and grace of a lumbering hippo (apologies to all hippopotamus amphibius )

Disgraced former Deputy Prime Minister & MP for New England Barnaby Joyce isn't finding many allies in the NSW Northern Rivers region.... 

The Daily Examiner, 21 August 2019, p.3: 

Chris Gulaptis has delivered a clear message to Nationals counterpart Barnaby Joyce over his controversial foray into the NSW abortion debate.

On Monday, Clarence Valley residents received anti-abortion robocalls from Mr Joyce, the Federal member for New England. 

In the pre-recorded message Mr Joyce makes a number of false statements regarding the abortion bill including that it would allow “sex selective abortions” and “abortion for any reason right up until the day of birth”. 

He then urges members of the community to contact their local member to voice their opposition to the bill. 

However, Clarence MP Chris Gulaptis said he was “disappointed” by the actions of his National Party colleague. 

“We certainly don’t interfere with federal matters and I encourage him not to interfere with NSW state parliamentary matters.” 

Mr Gulaptis re-iterated his support for the private members bill which would remove abortion from the state’s Crimes Act, which he voted for as it went through the lower house last week 59-31, after a marathon debate. 

Mr Gulaptis voted for some of the amendments to the bill and was “interested to see what amendments come down from the Upper House” but was as “happy as I can be” with it. 

“The intent of the bill is to remove abortion from the criminal code and put it into health where it should be,” he said. 

“Our primary concern is to support women who have to make these decisions which will be with them for the rest of their lives.”

And Barnaby is rather upset......

EXCLUSIVE – Barnaby Joyce's threat to quit the Nationals Party – he tells #7NEWS he WILL resign and sit on the crossbench IF at least 4 state Nationals members publicly declare they have lost support in him. Full story at 6pm. #auspol

— Jennifer Bechwati (@jenbechwati) August 22, 2019

A law firm specialising in freedom of religion, speech and conscience lays out the far-right's wish list concerning religious freedom legislation?

Make no mistake, what is in play here is an ideologically-driven push back against the 2017 amendment to the Marriage Act 1961 and, an attempt to regain the power to legally discriminate against the LGBTI community.

All three examples given by the Australian Christian Lobby in the following article involves individuals who have allegedly either actively discriminated against a transgender person or made statements to the effect that homosexuality was heretical, blasphemous and evil.

OUT in Perth, 8 August 2019:

The head of the Human Rights Law Alliance has laid out what he expects the government will allow in its religious focused anti-discrimination legislation.

In a recent presentation in Perth for the Australian Christian Lobby (ACL), John Steenhof the Managing Director of the organisation, listed a range of examples where he felt people’s religious freedom had been compromised.

One of the examples Steenhof notes is the case of a pharmacists who he says ended up resigning from their job because they felt an equal opportunity commission was going to force them to fill the prescriptions of people who are transgender. 

“Just yesterday I was speaking to a pharmacist who’s quit her job because she’s been threatened with a discrimination claim for refusing a female hormones prescription at her pharmacy for a biological male.” Steenhof said. 

The Human Rights Law Alliance is a non-profit legal organisation that is closely aligned with the Australian Christian Lobby. Steenhof’s predecessor Martyn Iles is now the head of the ACL. 

In a presentation at the ACL’s ‘Not Ashamed’ state conference Steenhof said there are a number of threats to religious freedom in Australia including disciplinary boards, workplace contracts, vague code of conducts and discrimination claims.

Steenhof also cited the example of Bernard Gaynor, a conservative commentator who supports public displays of homosexuality being made illegal. Steenhof said Gaynor had been targeted through New South Wales vilification laws despite him living in Queensland, and the case of Tasmanian Archbishop Julian Porteous.

In his presentation Steenhof said it appeared the government was not interested in bringing in a religious freedom law, something he said Christians would welcome, but could be dangerous as it may “leave the door open towards the progression of towards a bill of rights act.” 

Steenhof said while he had not seen the legislation the government was proposing he was concerned that a religious discrimination act could be problematic if it was not well worded. 

“We want robust and clear definition of religious freedom and how that translates into action that will be protected. 

We want protection for religious organisations, Christians not only individually, but in community…Christian schools, Christian charities, all of these organisation require protections.” 

“We need protections for charities that would hold to man-woman marriage, we need rights of parents – that’s a massive issue that needs to be address and projections.

We need to address the low bar on vilification laws which allows people to pursue Christians when they feel just a little bit hurt or offended.” Steenhof said. 

In July the National LGBTI Health Alliance (the Alliance), the national peak health organisation in Australia for organisations and individuals that provide health-related programs, services and research focused on lesbian, gay, bisexual, transgender, and intersex people (LGBTI) called for stakeholders to commit to a “to do no harm” pledge during the discussions regarding the introduction of a federal Religious Discrimination Act. 

They argue that evidence shows that the structural discrimination enshrined in our nation’s laws exacerbate the impacts of minority stress on LGBTI people, including increased anxiety, depression, suicidality and substance use. 

Nicky Bath, Executive Director said that calls for religious freedom should not be used a licence to discriminate against LGBTI people. 

“The Alliance recognises that freedom of religion is a fundamental human right and is an essential part of a liberal, democratic society. We support measures that protect people from discrimination on the basis of their religious beliefs or activity, or their secular beliefs or activity. However, legislation for religious freedom should not be used as a license to discriminate against LGBTI people.” Bath said. 

Recent research has highlighted how legislative processes and public debates relating to the rights of stigmatised, minority populations adversely effects our communities’ already poorer mental health, with an increase in psychological distress being evident among LGBTI people during the same-sex marriage postal survey. 

“We are calling upon all Members of Parliament, media, religious organisations and individuals to engage in a respectful debate and reporting around legislating for a Religious Discrimination Act to ensure that the right to practice one’s faith and the right to be free from discrimination are appropriately balanced in a coherent legal framework and do not further marginalise or harm our communities’ health and wellbeing”, Bath said. 

“We also call on the Morrison Government to consult with LGBTI people, organisations and communities to hear directly how this legislation and the ongoing public debates impact negatively on our mental and physical health.” 

The Pharmaceutical Society of Australia also says there is no need for pharmacists to be given an exemption from discrimination laws, and treating people equally is a big part of their code of conduct. 

“PSA recognises that equality is a health issue, and is a right for all Australians, irrespective of age, culture, religion, sexuality or gender identity.” a spokesperson told OUTinPerth. 

“This is reflected in PSA’s Code of Ethics for Pharmacists, which states that pharmacists have an obligation to respect the dignity and autonomy of the patient, recognise and respect patients’ diversity, cultural knowledge and skills, gender, beliefs, values, characteristics and lived experience – and not discriminate on any grounds, and provide care in a compassionate, professional, timely, and culturally safe and responsive manner.”

Tweets of the Week

In 2018, the Democratic National Committee filed a lawsuit in the U.S. District Court, Southern District of New York, against the Russian Federation et al. Donald Trump Jr is one of the defendants. There is a court hearing today - Trump Snr trying shut lawsuit down #USPolitics pic.twitter.com/hT2ioGEhPS

— no_filter_Yamba (@no_filter_Yamba) July 19, 2019

Good morning @ScottMorrisonMP

While you're off to Hillsong to clap your hands & speak in tongues, just wanted to let you know that my 90yo Mum who was once a milliner is busy today making this for you in Blue.

Let me know if you'd prefer black text.

& you're welcome. #auspol pic.twitter.com/hG4MVQJ5H7

— 💧🌏🏳️‍🌈Jenny Frecklington-Jones; #NotMyPM (@Triplejay58) July 20, 2019

exciting to see major media have worked out that #RaiseTheRate would be an actual stimulus measure. Looks like we’re just waiting on how government can work it into their economic narrative and it might just happen. Priorities. #Insiders

— Ingrid M (@iMusing) July 20, 2019

Land clearing law in New South Wales

Environmental Defenders Office NSW (EDO), 17 July 2019:

It’s been almost two years since the NSW Government introduced a new scheme for regulating land clearing and biodiversity in NSW. While the business of tree clearing has continued apace under self-assessed codes and a new Vegetation SEPP, fundamentally important parts of the scheme are still missing. This EDO NSW series of legal updates looks at how the laws are being implemented and the regulatory gaps that are putting our wildlife and healthy sustainable landscapes at risk.

Our first update looked at clearing in rural areas and outlined the fundamentally important parts of the scheme that are still missing even while tree clearing has continued apace under self-assessed codes. The second update looks at elements of the new scheme that are missing or lack clarity for tree clearing in urban areas and e-zones. This third update looks at compliance and enforcement of new clearing laws.

Read the third update here.

Successive NSW Governments have believed that construction risks are best managed by builders - how wrong they were

This was the position of the NSW Liberal-Nationals O’Farrell Government in May 2013 after reviewing changes made to state building regulations and certification:

As the Government’s April 2013 White Paper – “A New Planning System for NSW” points out, building regulation and certification are a significant part of the NSW planning system.

The general outcomes that regulation and certification seek to secure are two-fold. First, a level of building performance consistent with the needs of an advanced society in terms of health, safety, amenity and sustainability and second, compliance consistent with planning expectations as defined by the planning system.

The current system of certification has evolved from the introduction of private certifiers in 1998, enabled by amendments to the Environmental Planning and Assessment Act 1979 (EP&A) and Regulations. Following the 2002 Campbell Inquiry into the quality of buildings, administrative changes were put in place within the then Department of Urban Affairs and Planning for regulatory oversight of certifiers and in 2005 the Building Professionals Act established the Building Professionals Board (BPB), which took over this function.

Subsequently, there have been numerous legislative amendments and changes to regulations relating to certification. These have been essentially accretive and so the legislative framework has become unnecessarily complex and in some cases no longer relevant. With the establishment of a new planning system, the opportunity presents to take a fresh look at arrangements which have essentially developed as flow-ons from the last major reforms dating back to the 1979 commencement of the EP&A. Accordingly, the well established principles of developing regulatory systems that are efficient in an economic sense, as well as effective having regard to ease of administration, achievement of desired outcomes and minimizing the compliance burden, should now be applied……

It follows that improvements to building regulation must have regard to regulatory impacts such as cost and effective administration and ensure that certifier resources can cope with a higher level of activity.

However, regardless of the effectiveness of improvements that can be made to regulation, building construction risks are best managed by the builder and outcomes for consumers will depend on the clarity with which the roles and accountabilities of all the participants in the process are specified in statutes and regulations. [my yellow highlighting]

By 2013 private building certifiers were estimated as issuing at least 50 per cent of all building approvals, according the NSW Dept. of Planning & Industry.

In 2019 the wheels fell off this particular ill-advised policy change, with reports of private certifiers acting like cowboys and forced evacuations of defective, dangerously unstable multi-story apartment buildings.

The Sydney Morning Herald, 22 July 2019:

It gives me no pleasure, watching the looming disaster that is the NSW construction industry, to say we told you so  ("Toxic secret kept from unit owners", July 20-21).

In the early 2000s, along with my local government colleagues, we begged the NSW Government not to deregulate the supervision of building construction and give it over to private certifiers paid by the developers.

We warned it was putting the "fox in charge of the hen house" and would result in poor quality buildings that failed to comply.

Decades later successive state governments have ignored thousands of complaints from the community and numerous private certifiers declaring themselves bankrupt to avoid liability.

The industry is failing the consumer with all the benefits flowing to developers. The only real solution it to put government back in charge of regulation of the building construction process and that can only be done efficiently by a local authority. - Genia McCaffery, former president Local Government NSW

The Sydney Morning Herald, 15 July 2019:

Professional indemnity insurance premiums have skyrocketed following the discovery of severe defects at a string of apartment buildings in NSW and Victoria's flammable cladding problems, and other types of building insurance products are expected to follow.

News Corp, Morrison Government & mining lobby groups in concerted attack on environmental lawyers

The Attack.....

The Australian, 22 June 2019:

A taxpayer-funded network of environmental lawyers has been handed more than $2.5 million by state governments, helping the group to clog up courts and launch dozens of cases against gas and mining projects, including Adani’s Carmichael mine.

Environmental Defenders ­Offices in NSW and Queensland were awarded more than $1m from the Berejiklian government and almost $400,000 from the Palaszczuk government in 2017-18….

Resources Minister Matt Canavan yesterday called on the states to deprive the green lawyers’ groups of any more taxpayer funds.

“These EDOs are not defending the public interest but pursuing a political agenda,” he said.

“As such, they should not be receiving taxpayer support to ­destroy people’s jobs.”….

Leading business groups ­accused the EDOs of engaging in “vexatious litigation” which is ­delaying projects for years, damaging job-creation efforts and hindering the flow of ­royalties to states and territories.

“Frivolous and vexatious legal challenges to environmental ­approvals delay projects and threaten jobs in regional Australia,” Minerals Council chief executive Tania Constable said.

An Australian Petroleum Production & Exploration Association spokesman said the EDOs’ advocacy on climate change was out of step with their apparent role as a community legal centre for environmental cases.

“We have for some time questioned the role of the EDO and its public funding,” he said.

The Response.....

NSW Environmental Defenders Office (EDO NSW), 22 June 2019:

EDOs stand firm against attacks

We are a community legal centre of expert lawyers, proudly and unapologetically helping the NSW community to use the law to protect wildlife, people and our planet.

You can help by making a tax deductible donation today.

Environmental laws should not be for the few. They affect us all. Yet once again we are forced to defend the community's access to justice against attacks by a fossil fuel lobby aggrieved by the power our work provides to communities who seek to challenge the lawfulness and merit of their major projects.

EDO NSW's litigation work on behalf of our clients plays an important role, ensuring that people have access to justice and are able to exercise their rights under Australian law. People have a right to use the law to protect their family, homes and environment. To be clear, as public interest community legal centres, EDOs do not litigate on our own behalf, but represent clients (community groups, Aboriginal groups and individuals) who may otherwise be unable to have access to the justice system.

It’s disappointing to see, yet again, the Minerals Council and Australian Petroleum Production & Exploration Association demonstrating their lack of understanding of, and respect for, the rule of law. At their heart, these claims are an attack on our democracy and  we should all be very concerned.

The fossil fuel lobby has a track record of making the unsubstantiated claim that EDOs engage in vexatious litigation, and frankly it’s getting tired. Despite being over-utilised, this claim remains a troubling proposition. EDO NSW lawyers, who include some of the best in our field, take our professional responsibilities extremely seriously. Our 30 year track record is evidence of that. Not once in our history have our clients’ cases been found to be ‘frivolous or vexatious’.

Underpinning most of our litigation work is a question about whether the law has been complied with. That decision-makers apply the law is a fundamental feature of our democracy. Ensuring the law is complied with should be uncontroversial.

Help us continue this important work.

In other instances, our work interrogates whether approving a project is – considering all the circumstances – the correct or preferable decision. These are not simple questions. The answer lies in the weighting of a range of different factors. Our important work ensures that evidence proffered in support of a project is thoroughly tested. 

In a number of instances, including in the recent case concerning the proposed Rocky Hill coal mine, the economic benefits of the mine put forward by the mining company were found to be overstated, based on the evidence put forward by both the Government’s expert and our client’s.  Equally the economic negatives of that project - including social impacts and impacts on Aboriginal cultural heritage - were found to have been understated by the mining company.

Litigation is a small component of the work this office does on behalf of clients. When we do so, it is only after application of our casework guidelines and detailed analysis from senior legal experts to ensure there are merits in bringing a case.

EDO NSW also provides the community with free legal advice and education - work that does see us receive some State government grants. Our office operates a daily advice line providing free advice on matters of environmental and planning law.

The NSW Government has provided EDO NSW with funding for decades, irrespective of which party is in Government. This demonstrates a bipartisan understanding of our role and corresponding support for the provision of access to justice in this space - that is, allowing members of the community to understand and seek advice about NSW environmental and planning laws. 

Our work relates to ensuring that laws are applied correctly, and ensuring that evidence put forward by project proponents is tested in an appropriate and independent forum. Any changes to the law that erode community opportunities to participate in environmental decision-making would be very concerning. This could easily be seen as a blatant attempt to further prioritise the rights of coal mining companies over the rights of communities, including farmers, eco-tourism operators and others.

Show your support for EDO NSW today.

David Morris

CEO - Solicitor

Australian mainstream media learns another lesson as to why racism is bad policy

BuzzFeed News, 13 June 2019:

Channel Seven has failed in its bid to strike out a lawsuit brought by a group of Aboriginal people who say they were defamed during a now infamous panel discussion on breakfast TV show Sunrise about adopting Indigenous children.

Yolngu woman Kathy Mununggurr and 14 others from the remote community of Yirrkala, including adults and children, are suing the TV network after they were depicted in blurred overlay footage that played during the segment in March 2018.

In the discussion, hosted by Samantha Armytage, commentator Prue Macsween said of the Stolen Generations that “we need to do it again, perhaps”, and then-radio host Ben Davis said Aboriginal kids are getting “abused” and “damaged”.

The comments made by the all-white panel provoked protests outside the Sunrise studio in Sydney's CBD.

Mununggurr and the adults suing argue they were identifiable in the footage and that by playing it during the discussion Sunrise had suggested they abused, assaulted or neglected children, were incapable of protecting their children, and were members of a dysfunctional community.

The children suing say the program defamed them by suggesting they had been raped and assaulted, and were so vulnerable to danger that they should be removed from their families.

The group is also suing for breach of confidence and breach of privacy, as well as misleading and deceptive conduct and unconscionable conduct under the Australian Consumer Law.

The TV network tried to strike out all aspects of the lawsuit in a Federal Court hearing on Wednesday afternoon, but was slapped down by Justice Steven Rares, who said all the issues could and should be argued at trial…..

"This is about an Aboriginal community. They’re all very close. The neighbours know each other, they all know each other," the judge said.

"You’ve got a whole community up there, most of whom will be able to recognise each other, obviously some of whom who watch Sunrise, or whatever the show is called."…...

Rares accepted there was an argument that Davis and the radio station 4BC were being promoted during the segment, but was less convinced when it came to Macsween.

“To me she’s a nobody. I’ve never heard of her and I’ve got no idea what contribution she possibly could have made to the program,” he said.

Nonetheless Rares sided with Catanzariti and declined to strike out the claim.

Seven's attempts to strike out the remaining claims of breach of confidence, breach of privacy and unconscionable conduct were similarly rejected.

Seven was ordered to pay the costs of the hearing.