New South Wales State of Play February 2019: widespread drought

The bad news just never ends.

All of New South Wales is drought affected to varying degrees in February 2019, incliuding the Northern Rivers region.

https://edis.dpi.nsw.gov.au/

The lies Liberals tell on the subject of aged care

The Australian, 7 February 2019:

Aged Care Minister Ken Wyatt was handed a departmental briefing report showing the “winners and losers” from the Coalition’s $2 billion savings drive in the aged-care sector shortly after Scott Morrison announced a royal commission and denied funding cuts.

Documents obtained by The Australian under Freedom of Information laws show the proportion of “losers” almost tripled to 53 per cent following the budget savings revealed in late 2015.

In the three-year period to 2018, aged-care services that had been classified as “winners” almost halved to 47 per cent, according to the brief sent to Mr Wyatt.

A series of “hot issue briefs, question time briefs and general briefs” sent to Mr Wyatt last year acknowledged the budget hit to the Aged Care Funding Instrument — which is the basic taxpayer care subsidy paid to all nursing homes — together with “increasing cost pressures will be putting pressure on the sector”.

Mr Wyatt was also made aware of reports of “cut backs to staffing”. At a press conference announcing the royal commission into aged care in September, the Prime Minister was questioned about two cuts to the ACFI in the 2015 mid-year economic update and the 2016 budget but denied any had been made.

“No, no, the Labor Party said that. I don’t accept that,” he said. Two days later, a question time brief prepared for Mr Wyatt offered advice on what to say if asked about funding cuts to ACFI.

The ministerial brief also contains a breakdown of funding changes by domain, revealing that average annual taxpayer subsidies per resident increased by just $400 between 2016-17 and 2017-18 despite the growing frailty and complexity of Australians as they enter residential aged care older than ever before.

For the first time, funding for the two areas that provide extra boosts for nursing home residents with significant behavioural problems and complex healthcare requirements went backwards by $300 a person.

The peak body for aged-care providers, ahead of the April 2 budget, has urged the Coalition to include an additional payment of almost $700 million each year.

“This estimate reflects a range of factors, including the value of foregone indexation (through ACFI),” Leading Age Services Australia (LASA) says in its pre-budget submission, seen by The Australian. “This is approximately a 5.2 per cent increase in residential care funding in 2019-20, noting that this is difficult to calculate as forward estimates for residential and home care are no longer separately reported.” LASA said it considered the money to be a “down payment” and a notably larger funding boost might be needed following the findings of the royal ­commission.” The commission, which is due to release its interim report in Oct­ober and the final version by the end of April 2020, has already highlighted the widespread industry practice of “doping” nursing home residents, which doctors, nurses and consumer groups attribute to overworked staff. [my yellow highlighting]

Liberals taking yet another leaf out of Donald Trump's election campaign play book

During the 2016 US presidential election campaign the Internet was littered with pressure groups which were not who they said they were and whose aims were not those they publicly stated.

Donald Trump and/or his supporters appeared to be behind many of these groups.

It seems the Liberal Party is also forming these faux pressure groups ahead of the 2019 federal election campaign in Australia.......

The Sydney Morning Herald, 7 February 2019:

A lobby group masquerading as a grassroots organisation of disgruntled retirees is actually a network of professional lobbyists involved in the trucking industry and the Liberal Party, with a history of campaigning against Labor government policies.

Defenders of Self-Funded Retirees says it was formed by "hard-working Australians who reject Labor's proposal to impose double taxation and to demonise us". 

However, the association is managed by Liberal Party member and ACT Senate candidate Robert Gunning, along with a number of Mr Gunning's friends from the trucking lobby.

The network is one of a number of interest groups set up after Labor announced its plan to abolish refundable franking credits, and has contributed heavily to Liberal MP Tim Wilson's controversial parliamentary inquiry into Labor's policy.

It also campaigned against Labor in the Longman byelection and aims to marshal an army of volunteers for the looming federal election, in which the dividend imputation policy is set to be a major battleground.

Company records show Defenders of Self-Funded Retirees Ltd is owned by Canberra-based lobbyist Andrew Higginson, Mr Gunning's Gold Coast friend Robert "Bob" Harrison and a man called John Richard Evans.

Mr Gunning is a lifelong trucking industry lobbyist who headed the Australian Livestock and Rural Transporters Association and the Livestock and Bulk Carriers Association. He has said his proudest achievement was the abolition of Labor's Road Safety Remuneration Tribunal…..

Mr Gunning quit the LBCA to contest the 2016 election for the Liberals against Andrew Leigh in the Canberra seat of Fenner, one of the safest Labor electorates in the country. His role in Defenders of Self-Funded Retirees was revealed because his name appears beside the posts on the group's Facebook page.

Morrison & Co off to the Australian High Court to defend the indefensible - Centrelink's robo-debt

The Guardian, 6 February 2019:

Centrelink has now wiped, reduced or written off 70,000 “robo-debts”, new figures show, as the government’s automated welfare compliance system scheme faces a landmark court challenge.

Victoria Legal Aid on Wednesday announced a challenge to the way Centrelink evaluates whether a person owes a welfare debt under the $3.7bn system. It will argue the “crude calculations” created using tax office information are insufficient to assess a person’s earnings and, therefore, are unlawful….

Victoria Legal Aid’s court challenge was also welcomed by the Australian Council of Social Service chief executive Cassandra Goldie, who said the scheme was a “devastating abuse of government power…..

Alternative Law Journal. Emeritus Professor of Law (Syd Uni) Terry Carney, Robo-debt illegality: The seven veils of failed guarantees of the rule of law?, 17 December 2018:

The government's on-line-compliance (robo-debt) initiative unlawfully and unethically seeks to place an onus on supposed debtors to ‘disprove’ a data-match debt or face the prospects of the amount being placed in the hands of debt collectors. It is unlawful because Centrelink, not the supposed debtor, bears the legal onus of ‘proving’ the existence and size of any debt not accepted by the supposed debtor. And it is unethical because the alleged debts are either very greatly inflated or even non-existent (as found by the Ombudsman), and because the might of government is used to frighten people into paying up – a practice rightly characterised as a form of extortion. How could government, accountability avenues, and civil society have enabled such a state of illegality to go publicly unidentified for almost 18 months and still be unremedied at the date of writing?

This article suggests the answer to that question lies in serious structural deficiencies and oversights in the design and operation of accountability and remedial avenues at seven different levels:

1. In a lack of standards to prevent rushed government design and introduction of machine learning (‘smart’) systems of decision-making;

2. In a lack of diligence by accountability agencies such as the Ombudsman or Audit Office;

3. In a lack of ethical standards of administration or compliance by Centrelink with model litigant protocols;

4. In a lack of transparency of the first of two possible tiers of Administrative Appeals Tribunal review (AAT1), resulting in a lack of protections against gaming of review by way of agency non-acquiescence or strategic non-contestation;

5. In a lack of guarantees of independence and funding security to enable first line Legal Aid or community legal centre/welfare rights bodies (CLC/WRC) to test or call out illegality in the face of thwarting of challenges by Centrelink settling of potential test cases;

6. In a lack of sufficient pro-bono professional or civil society capacity to mount ‘second line’ test case litigation or other systemic advocacy; and

7. In tolerance, especially in some media quarters, of a ‘culture’ of political and public devaluing of the significance of breaches of the rule of law and rights of vulnerable welfare clients.

It is argued that a multifaceted set of initiatives are required if such breaches of legal and ethical standards are to be avoided in the future.

Why is it clear that robo-debt is unlawful?

The pivot for this article is not so much that Centrelink lacks legal authority for raising virtually all debts based on a robo-debt ‘reverse onus’ methodology rather than use its own information gathering powers – for this remains essentially uncontested. Rather it is extraordinary that this went unpublicised and uncorrected for over two years. So first a few words about the illegality as it affects working age payments such as Newstart (NSA) and Youth allowance (YA).

Robo-debt is unlawful because Centrelink is always responsible for ‘establishing’ the existence and size of supposed social security debts. This is because the legislation provides that a debt arises only if another section creates a debt, such as one based on the difference between the amount paid and the amount to which a person is entitled. And because Centrelink bears a ‘practical onus’ to establish this. If Centrelink cannot prove up a debt from its own enquiries or information supplied to it, the status quo (no debt/lawful receipt of payments) applies. This has been the law since 1984 when the full Federal Court decided McDonald. Unless the alleged debtor is one of the rare employees who had only a single job paid at a constant fortnightly pay rate, Centrelink fails to discharge this onus when its robo-debt software generates a debt by apportioning total earnings reported to the Australian Taxation Office (ATO) from particular jobs to calculate average earnings. Robo-debt treats fluctuating earnings as if that income was earned evenly at the same rate in each and every fortnight. Mathematically this is wrong because an average for a fluctuating variable never speaks to its constituent parts. And it is the actual income for constituent fortnights that as a matter of law is crucial for calculating the rate of a working age payment such as NSA or YA.

Read the full article here.

And now for some good news......

David Morris, CEO of EDO NSW: Our argument was based on science, economics and – we argued - the proper application of the law. The climate contention as a ground for refusing this mine was innovative; the first time climate change has been addressed this way in an Australian court using the concept of a carbon budget as its basis.

Like so many great ideas – its strength was its simplicity. While there was lots of necessary evidence and discussion about the carbon budget, geopolitical climate policy and Australia’s legal framework for climate change, ultimately our argument was simple:  if you accept the science, then the local legal framework compels you to refuse the mine because it’s clearly not in the public interest to increase emissions.

As Professor Steffen said “it’s one atmosphere, it’s one climate system, it’s one planet - and so we need to start thinking more carefully about the net effect of wherever coal is burnt, or oil or gas… The project’s contribution to cumulative climate change impacts means that its approval would be inequitable for current and future generations”. [EDO NSW, media release, 8 February 2019]

The Sydney Morning Herald, 8 February 2019:

When Planning Minister Anthony Roberts intervened a year ago to give a coal miner the unusual right to challenge its project's refusal in court, neither would have countenanced Friday's outcome.

Instead of settling the future of Gloucester Resources' controversial Rocky Hill coal mine near Gloucester, the NSW Land and Environment Court just cast a cloud over coal mining in general.

The miner had thought it was merely challenging the Department of Planning's rejection of the mine's impact on visual amenity in the bucolic valley around Gloucester.

Instead, the Environmental Defenders Office, acting for residents opposed to the mine, grabbed the opportunity to join the appeal.

In what EDO chief David Morris describes as a "delicious irony", the court got to hear about the project's detrimental impact on climate change and the town's social fabric - despite Gloucester Resources arguing such intervention would be a "sideshow and a distraction".

Future generations will wonder why it took so long for any court in the land to hear such evidence when considering a coal mine project.

But Justice Brian Preston didn't just allow the EDO to provide expert evidence of the role greenhouse gas emissions play in driving climate change. He also accepted it as part of the critical reasons to reject the mine. "The decision forms part of what is a growing trend around the world on using litigation to fight climate change," Martijn Wilder, a prominent climate lawyer from Baker & McKenzie, says. "While early on some of this litigation was not successful, increasingly it is."

Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7, 8 February 2019 judgment here.

Former banker and now Australian Treasurer promises market sensitive Banking & Finance Royal Commission final report would not leak - then it did

On 1 February 2019 the Commissioner, Kenneth Haynes, submitted his final report on the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry to the Governor-General of Australia.

Then this happened...... 

The New Daily, 5 February 2019:

Last week Josh Frydenberg “guaranteed” the royal commission’s final report would not leak while the government sat on it for three days.

About $22 million says that guarantee wasn’t worth anything.

The welter of news in Kenneth Hayne’s report has tended to overshadow what appears to be some rather obvious insider trading.

Someone, somewhere, somehow received a nod and wink on Monday morning that the banks would actually come out of the royal commission better than expected.

“Front running” is the market euphemism for what happened next.

“Any alternate explanation is fanciful,” a fund manager wrote to me.

“With the banks down a quarter per cent, some trader looked out the window at 11am and noticed it was all sunny and cheerful and decided to buy a half billion dollars worth of the major banks ahead of the report into their own malfeasance. I don’t think so.”

That half-billion plunge at 11am was worth a quick $22 million profit on Tuesday morning.....

The first question I have is "How many Morrison Government Cabinet Ministers contacted their own stockbrokers between 1 and 3 February 2019 asking them to buy bank or insurance company shares on their behalf or on behalf of family members?"

Tweet of the Week

Why are people turning a blind eye to gross mismanagement of Murray Darling? Why aren’t the people responsible for this facing prosecution? #QandA pic.twitter.com/8V1zgIPIHn

— ABC Q&A (@QandA) February 4, 2019