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.

Australian Education Minister Dan Tehan gives working parents in rural and regional areas unrealistic advice

"Nearly 300,000 children in regional and remote areas receive formal childcare. However, unlike capital cities where a glut of childcare centres is reported, access to childcare continues to be a problem in regional areas.” [Centre for Independent Studies, 23 September 2018]

City centrism is alive and well in the Morrison Government.

Photograph: ABC

Here is the Minister for Education and Liberal MP for Wannon Dan Tehan  (pictured left) blithely assuming that every town across Australia not only has a chilcare centre it has more than one.

In Dan's world parents in rural and regional areas are apparently able to shop around for competitively priced childcare.

[cue cynical laughter]

The Daily Examiner, 22 July 2019, p.5:

Greedy childcare centres have gobbled up almost half the money parents were meant to save from new subsidies by raising their fees.

A subsidy system which began on July 2 last year was meant to save the average family $1300 in childcare fees a year.

But new data shows that in the year leading up to the subsidy’s introduction, the average parent with a child in care 48 weeks of the year is paying $622 more than they were 12 months ago.

Of this $276.50 of that came from cost increases between July and September 2018, after the subsidy was introduced.

Labor’s childcare spokes-woman Amanda Rishworth said the government should be “naming and shaming” centres who lifted fees to take advantage of the subsidies.

But Education Minister Dan Tehan said out-of-pocket costs for child care had still fallen almost 9 per cent, and urged those getting a raw deal to “vote with their feet and find a new service”.

Education Department data recording costs in September 2018, the first released since the subsidies came into place, revealed the increased costs.

It showed the average family, which pays for 28.8 hours a week, had fees increase by $13 a week between September 2017 and September 2018, including $5.80 a week increase in the quarter the subsidies were introduced….

Australian Politics in 2019: the betrayal

Echo NetDaily, 15 July 2019:

Thus Spake Mungo: The betrayal

Scott Morrison really likes quiet Australians – as quiet as possible. So it was really no surprise that his response to his minister, Ken Wyatt’s modest and tentative proposal to consider reviving an Indigenous Voice through the Uluru Statement from the Heart was simple and direct: bloody well shut up and do what you are told.

We will decide who speaks for Indigenous Australia and the circumstances in which they speak, and by we, I mean me, and Eric Abetz and Peter Dutton and the Institute of Public Affairs and Andrew Bolt – not Indigenous Australians. They can do what they are told.

So the glimmer of hope last week was extinguished as soon as it began. Wyatt knew it probably would be – when he delicately referred to ‘reticence’ within his party room, he was prepared for a backlash, but maybe not one as cynical, hypocritical and downright vicious as the one that transpired.

In nanoseconds the same old lies were trotted out, most outrageously the one about the Voice being a third chamber of parliament. If the deliberately ignorant ever thought that was the case, they have certainly been informed by now that it never was and never is – the proposal is for a Voice, an advisory body with no power to legislate or veto whatever the parliament decides.

This must have been clear even to Dutton. But this did not stop him repeating the fabrication on national television. What he actually means, of course, is that the truth is irrelevant – what matters is that it can be turned into a massive scare campaign to deceive the gullible in much the same way the coalition devised the invention of Labor’s death taxes, which worked on May 18.

And if that involves rejecting, traducing and misrepresenting the long and tortuous process that led to Uluru, well they can just suck it up. Everyone knows there are no votes in Aborigines.

So Wyatt meekly surrendered to the inevitable and will now go back to what he called pragmatism, negotiation, compromise – we must have consensus before we even think about going to a referendum, otherwise there is a risk of it failing.

And indeed there is, but only because of the intransigence of the reactionary rump that now holds sway over his government. The deep strain of latent racism that prevails throughout the joint party room and its acolytes is not confined to the fringes of the National Party – it has infected Liberals as well, some of whom call themselves the protectors of mainstream Australia.

They are worried about what they regard as causing divisions – offering rights and privileges to one group to disadvantage the rest. This is precisely what they demand for the religious zealots, but no matter. As they well know, there are no votes in Aborigines. And there is a sneaking suspicion that their predicament, while deplorable, is somehow their own fault – if they could just forget the past and get on with it, the incarcerations, the mortality rates, the unemployment, the homeless, the poverty and despair would simply disappear.

So we have the always predictable Craig Kelly say he did not want to spend money on a referendum – he would rather spend it on closing the gap (actually he would rather spend it on a coal fired power station, but let that pass). Barnaby Joyce says the solution is to break up the senate to bring in more rural members. Amanda Stoker, apparently attempting to remake herself into a transgender Peter Dutton, is against anything even vaguely progressive on principle.

And she is not the only one – come in Morgan Begg, of IPA, which by no coincidence is secretly funded by a large chunk of the mining industry, a traditional enemy of Indigenous rights. Begg sprang into the pages of The Australian (where else?) to claim that a Voice would violate all principles of racial equality. And he went back to the hugely successful 1967 referendum to boost his thesis: by agreeing to count Aborigines in the national census, Australians voted to remove race from the constitution.

But that was only part of that they voted for. They also voted to give the Commonwealth Parliament the right – even the duty – to legislate specifically for Aborigines, a considerably more substantial outcome. This was the power John Howard used in 2006 to bring in his military intervention of allegations of child abuse. There is no record of Begg inveighing against such blatant racism division, illiberalism.

And his hypocrisy is echoed by many conservatives, including Morrison, who is determined to avoid embedding any suggestion of a Voice in the constitution – the key, the non-negotiable plank in the Uluru Statement. Morrison says that if there is to be a Voice – and mind you, he is not saying there will be – an advisory body established by parliament will be quite sufficient.

But this misses the point: not only would such a body be vulnerable to political interference, in the same way Howard abolished the former Australian and Torres Strait Islander Commission in 2004, but the whole idea is that the Voice should be endorsed by the Australian people, not just by the politicians of the time.

This after all, was the argument of the conservatives over same sex marriage – the change was so important it had to go to a plebiscite. But obviously reconciliation with Indigenous Australians can be regarded as relatively trivial – there are no votes in Aborigines.

In the end, Morrison and Wyatt will probably be able to cobble together some anodyne words, some impotent tokenism he can take to a referendum

In the end, Morrison and Wyatt will probably be able to cobble together some anodyne words, some impotent tokenism he can take to a referendum which may or may not pass, and who cares anyway. But it will be a travesty of Uluru, a betrayal of the painstaking months of good faith the delegates invested in the hope that this time, at last, someone would listen.

Wyatt has been lauded as the first of his race to join cabinet as the first Minister for Indigenous Australia – Morgan Begg and Andrew Bolt would no doubt call this divisive in itself. But the task was too much for him or probably anyone else. Ken Wyatt could have been a hero – not only an Indigenous hero, but a hero for all Australians of goodwill, the majority who are willing to support the long march to real reconciliation. Instead, he has become just another casualty, yet another victim of the casual racism and cruelty of the right wing rump……

Read the full article 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.

State of Play 2019: the Australian workplace

Financial Review, 17 July 2019:

The head of a large mortgage brokering company is facing court for allegedly paying his Filipino nanny just $2 an hour for working more than 100 hours a week.

The Fair Work Ombudsman (FWO) has accused Tony Lam, managing director of Award Mortage Solutions, of underpaying the worker $155,178 for 12 months of domestic and caring work at his luxury penthouse apartment in Sydney.

The Federal Court action is set to be a significant test of whether nannies and domestic workers are covered by modern awards, which include overtime and penalty rates for morning, evening and weekend work.

The "scale of the alleged underpayments and the unreasonable work hours are concerning", said ombudsman Sandra Parker.

“We allege the worker in this case was vulnerable to exploitation given she was new to Australia, resided with Mr Lam and his family and did not know what her workplace rights were," she said......

ABC News, 18 July 2019:

An Adelaide construction site supervisor who doused an apprentice in flammable liquid and set his clothes on fire has pleaded guilty to breaching the Work Health and Safety Act.

Key points:

Tad-Mar Electrical supervisors Luke Daniel Chenoweth and Jeffrey Mark Rowe are being prosecuted by SafeWork SA

The tribunal was told the victim could have suffered second-degree burns

Chenoweth will be sentenced at a later date, Rowe was fined $12,000

Tad-Mar Electrical employee Luke Daniel Chenoweth and fellow supervisor Jeffrey Mark Rowe were prosecuted by SafeWork SA over the incident at a worksite in Woodville in April 2017.

Prosecutor Laura Willows told the South Australian Employment Tribunal (SAET) that Chenoweth squirted flammable liquid onto the boot of a 19-year-old apprentice — who the ABC has chosen not to name.

"He let the flames on his boot go out and he didn't say anything, he just wanted to get away from Chenoweth," she said.

"Chenoweth followed him and squirted some more liquid onto the crotch area of the complainant.

"It was at this point the complainant became particularly scared … so he ran away."

However, Ms Willows said the two supervisors followed the apprentice and both squirted more lighter fluid on the young worker's shirt and ignited it.

"[The apprentice] felt intense heat instantly and he was pulling his shirt away from his skin and waving his arms to try and put the flames out," she said.

"He could smell burnt hair and he was worried he had been seriously burnt."

'The apprentice could have suffered second-degree burns'

The court heard the apprentice would have suffered second-degree burns if his shirt was left on his body for another 20 seconds.

Ms Willows told the court the apprentice was subjected to ongoing bullying in the lead-up to the incident.

She said the apprentice had previously been tied to a ladder with duct tape, had his arms and face covered with silicon and permanent marker and had been locked in a shipping container.

The court heard Chenoweth had also failed to ensure that the apprentice received medical assessment for an electric shock and subjected him to frequent verbal abuse.

"The defendant was in a position of authority on the building site being supervisor and the victim was an apprentice," Ms Willows said.....

George Colombaris
Photograph, The Age, 18 July 2019

Australian Government Fairwork Ombudsman's Court-Enforceable Undertaking with the MADE Establishment Pty Ltd group of companies, excerpt from public apology template, July 2019:

In early 2017, following a change in ownership and management, MAdE Establishment conducted a review of its records and identified circumstances where it had failed to correctly pay many of its employees. MAdE Establishment self-reported this to the Fair Work Ombudsman (FWO) which subsequently commenced an investigation into Jimmy Grants and the MAdE Establishment group of companies, being the Hellenic Republic, Press Club and Gazi restaurants.

Since first identifying the underpayment issues, the MAdE Establishment group has back-paid 515 current or former employees $7.83m.This amount comprised underpayments for the admitted contraventions listed below. In some cases, workers were incorrectly classified. Record-keeping laws relating to time records for some annualised salary employees were not adhered to, contributing to underpayments.

The FWO also found underpayments of about $16,000 for 9 employees at two Jimmy Grants stores. Jimmy Grants (Emporium) and Jimmy Grants (Fitzroy) incorrectly classified some workers and for some employees the wrong award was applied, resulting in underpayments of base rates for ordinary hours and a range of penalty rates......

George Calombaris, founding shareholder (shareholder 2008-current, director 2008-2018)

Radek Sali, Director of MAdE Establishment (director 20 December, 2016-current, shareholder 20 December, 2016 - current)

Adam Gregory, Director of MAdE Establishment (director 26 April, 2017-current, shareholder 28 August, 2017 -current)

Australia attempts to "erase the science" on climate change at UN talks in Bonn?

BBC News, 27 June 2019:

Oil producing countries are trying to "erase the science" on keeping the world's temperatures below 1.5C, say some delegates at UN talks in Bonn.

The chair of the Alliance of Small Island States said Saudi Arabia and others were trying to pretend a key scientific report didn't exist.

Small island states believe keeping temperatures below 1.5C this century is critical to their survival.

A key report in October said this was possible.

But huge emissions cuts would be needed in the short term.

The Intergovernmental Panel on Climate Change (IPCC) report on 1.5C was commissioned by the UN back in 2015.

But when it was presented to climate negotiators in December in Poland, four countries including the US, Saudi Arabia, Russia and Kuwait refused to "welcome" it.

The simmering battle over the report has re-emerged here at this meeting in Bonn.

There has been a serious battle over a text that would include reference to the scientists' conclusion that carbon emissions would have to be reduced by 45% by 2030.

Saudi Arabia has been at the fore in wanting to include text that underlined the uncertainties in the report.

For the group of around 40 small island states, this has proved inflammatory.

"The report came out in in October of 2018 and now we see this move at the negotiations to try and have it almost erased from existence, which is impossible to do," Lois Young, the ambassador from Belize, who is chairing the group, told the BBC.

"There's this move to pretend as though it's not there, to not to refer to it in documents. And it's been ongoing since we got here."

The Saudis have gained some support in their arguments from an unlikely alliance of countries, including the US, Australia and Iran.

"The countries that are trying to downplay the importance of the document, erase it from the records, not all of them are showing their faces," said Ambassador Young.

"It's unreal, it's as though they're resigning our Aosis states to collateral damage, I mean, it's like we have no importance doesn't matter." [my yellow highlighting]

Read the full article here.

Police accused of running "a new regime of secrecy"?

From the July 2019 issue of the Australian Newspaper History Group Newsletter:

The Royal Commission into the Management of Police Informants' progress report, which was tabled by the Victorian Government today, is now available along with the Commission’s first tranche of public submissions here.