Proof that the Morrison Government considers itself above the law

Image: ALEX ELLINGHAUSEN, The Sydney Morning Herald 

Minister for for Cities, Urban Infrastructure and Population & Liberal MP for Aston Alan Tudge (left) has been Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs since 13 December 2019.

It is to him the following Federal Court of Australia judgment refers.

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v PDWL [2020] FCA 1354 (23 September 2020), excerpts from judgment of 23 September 2020:

CONCLUSIONS

Ground 1 of the Amended Originating Application has been upheld. Notwithstanding the agreement between the parties to the Tribunal proceeding, the Tribunal erred in acting upon the agreement between the parties that the decision in BAL19 required it “to set aside the ... delegate’s decision” and that “[the] only question” to be resolved was the form of the “further order” to be made under s 43(1)(c) of the Administrative Appeals Tribunal Act.

Although the Tribunal quite properly acted upon the agreement of the parties that it was bound by BAL19, the fact remains that the Tribunal failed to give any consideration to a matter of fundamental importance to a decision as to whether to grant or refuse a protection visa – namely, the discretion conferred by s 501(1). In failing to do so, the Tribunal committed jurisdictional error.

The second Ground of review, it has tentatively been concluded has some merit.

Even if both Grounds of review were made out, however, relief should be refused in the exercise of the Court’s discretion. The Minister cannot place himself above the law and, at the same time, necessarily expect that this Court will grant discretionary relief. The Minister has acted unlawfully. His actions have unlawfully deprived a person of his liberty. His conduct exposes him to both civil and potentially criminal sanctions, not limited to a proceeding for contempt. In the absence of explanation, the Minister has engaged in conduct which can only be described as criminal. He has intentionally and without lawful authority been responsible for depriving a person of his liberty. Whether or not further proceedings are to be instituted is not a matter of present concern. The duty Judge in the present proceeding was quite correct to describe the Minister’s conduct as “disgraceful”. Such conduct by this particular Minister is, regrettably, not unprecedented: AFX17 v Minister for Home Affairs (No 4) [2020] FCA 926 at [8] to [9] per Flick J. Any deference to decisions made by Ministers by reason of their accountability to Parliament and ultimately the electorate assumes but little relevance in the present case. Ministerial “responsibility”, with respect, cannot embrace unlawful conduct intentionally engaged in by a Minister who seeks to place himself above the law. Although unlawful conduct on the part of a litigant does not necessarily dictate the refusal of relief, on the facts of the present case the Minister’s conduct warrants the refusal of relief.

It is finally concluded that there should be no order for costs. Although PDWL has succeeded in retaining the visa granted to him, that result follows not from the lack of success on the part of the Minister in establishing jurisdictional error but rather from the discretionary refusal of relief.

THE ORDERS OF THE COURT ARE:

The Amended Originating Application filed on 20 July 2020 is dismissed.

There is no order as to costs. [my yellow highlighting]

Alan Tudge should resign from the Australian Parliament with immediate effect.

However, it is highly likely he will refuse any call to do so and instead appeal this judgment.

Dispatches from the Australian Koala Wars

Echo NetDaily, 21 September 2020:

The Knitting Nannas standing up (and sitting down) for koalas in Casino.

The Knitting Nannas are holding regular public knit-ins in Casino in support of NEFA, to raise awareness about Forestry operations logging in koala habitat in particular in Myrtle Forest, near Casino which was severely impacted by last summers’ fires.

The Nannas say recent surveys by Dailan Pugh and NEFA volunteers found evidence of koala scats in Myrtle forest and additional roosting trees.

The Nannas say the forest needs to recover to enable koalas to recover.

SpokesNanna Rosie said that the recent government report that found koalas will be extinct by 2050 in the wild makes this imperative. ‘It is estimated Banyabba koalas which range this forest lost 83% of their population. Last week we had a long chat to an old forester who agrees that current Forestry practices are not sustainable…….

The Sydney Morning Herald, 21 September 2020:

Almost three-quarters of key habitat the Berejiklian government was planning to set aside for koala protection was burned in last summer's fires.  
The government announced in May 2018 it would begin to address the decline of koala numbers including preserving extra habitat, according to a Planning Department paper dated June 23 this year. 

It started to transfer more state land to the national parks system, including 1382 hectares from the Mount Boss State Forest to the Kindee Creek area and 2080 hectares earmarked in the Carrai State Forest to the Willi Willi National Park. 

However, last season's devastating bushfires burnt more than 5 million hectares in the state. Of the state forests transferred to national park tenure, 72 per cent "were impacted", as were about 58 per cent proposed flora reserve, the documents show...... 

ABC News, 23 September 2020: 

Agreements to change logging rules in New South Wales to better protect animals that survived last summer's bushfires have been torn up by Deputy Premier John Barilaro's department and government-owned loggers, sparking yet another inter-government stoush over koala habitat.  

An explosive letter sent earlier this month to the NSW Environmental Protection Authority (EPA) from the heads of the Department of Regional NSW — Mr Barilaro's department — and Forestry Corporation of NSW states there has now been "substantial recovery post-fire in many coastal state forests". 

It declares logging in NSW can return to "standard" this month in forests not covered by new site-specific logging rules. 

The letter comes despite an agreement struck between the loggers and the EPA earlier this year to only log areas according to those new rules. 

The letter sparked a fiery response from EPA boss Tracy Mackey, which was published yesterday on the EPA's website. 

She said the move did not appear to be lawful, and the EPA was now considering action to stop Forestry Corporation..... 

Other documents released to NSW Parliament earlier this month show the EPA believed the actions were partly motivated by the direction of Mr Barilaro, the Department of Regional NSW and Forestry Corporation. 

The documents also detail allegations that Forestry Corporation made false reports about its logging operations to avoid new protections.....

"Well the number of healthy and otherwise treatable Koala who have died from being hit on our roads this year is ridiculous, irreplaceable & equates to many future generations of Koala not being born." [Maria Mathes @talkingkoala, NSW Northern Rivers region, 17 September 2020]

Where is my tree?
Photo: 

@ctownkoala

The Guardian, 22 September 2020:

The former head of the New South Wales Young Nationals and chair of its women’s council has resigned from the party joining a growing list of high-profile members to quit in the wake of the koala policy saga. 

Jess Price-Purnell, an almost decade-long member of the Nationals, has left, describing the threat by John Barilaro to blow up the Coalition government over the koala policy saga “despicable”. 

It comes as the NSW Coalition held its first joint party room meeting since Barilaro was forced to back down over his threat to pull the Nationals out of the Coalition after the premier, Gladys Berejiklian, issued an ultimatum to either support the policy or resign from the ministry....

BACKGROUND

NorthEast Forest Alliance (NEFA), excerpts from website:

* The North East Forest Alliance (NEFA) travelled out to Braemar State Forest in July 2019 to survey and protect koala habitat under logging rules that meant areas significant koala use would need to be protected. 

What we discovered blew us away with an exceptional population of an estimated 60+ koalas at risk of logging. 

Scat searches indicate there are over 100ha of Koala High Use areas – unprecedented in State Forests. What we found was so compelling that we returned multiple times and completed four different audits of koala evidence in the area. 

When we submitted this data to Forestry Corporation of NSW they simply announced they would be logging Braemar State Forest under the new logging rules meaning no koala habitat will be protected. 

We have estimated that homes of over 60 koalas will be decimated if this logging were to go ahead - unthinkable while local koala populations have halved in just 20 years. (source) With logging due to commence, we are turning to the community to come together in support of Braemar's koalas. 

We can stop this devastation, but we need your help....

* NEFA are preparing a proposal for the 7,000 ha Sandy Creek Koala Park covering significant Koala habitat in Braemar, Carwong, Royal Camp and Ellangowan State Forests, as well native vegetation on land Forestry Corporation purchased for pine plantations. The values of these forests for Koalas are documented in our audits,

These encompass a regionally significant Koala population in forests that have been degraded by logging, though are capable of supporting an expanding Koala population if left alone.

We were dismayed when on the night of 8 October the Busby's Flat fire changed direction and burnt out most of the proposal overnight. It was an anxious time while we waited to get in there and see how the Koalas had fared.

The good news was that while the understorey was incinerated, the fire had rarely crowned meaning quite a few Koalas survived. The bad news is that the crowns of most trees were cooked by the intense heat and the leaves have since died, leaving large areas devoid of food and most of the surviving Koalas with little to eat. 

NEFA have been assessing core Koala colonies and found that Koalas are surviving in the areas where large scattered feed trees, or patches of trees, have retained most of their canopies. With limited fresh feed and desiccated leaves some Koalas are dehydrated, and severely so. A report on this is available at https://www.nefa.org.au/audits 

This regionally significant Koala population has been severely affected by the fire, it has set back its recovery by decades. Help is needed to stabilise the population if further decline is to be averted. The last thing they need is for forestry to log their remaining feed trees.....

Queensland is set to expand the border zone into more areas of Northern New South Wales from 1 October 2020

ABC News, 22 September 2020:

Queensland is set to reopen its borders to parts of New South Wales after Premier Annastacia Palaszczuk announced the state's border bubble will soon include five additional local government areas.

From 1:00am on October 1, residents in Byron Bay, Ballina, Lismore, Richmond Valley and Glen Innes local government areas will be able to travel into Queensland.

It comes as the state recorded zero new coronavirus cases overnight, leaving just 16 active cases.

The extended border zone will include 41 New South Wales postcodes, spanning 11 local government areas.

Residents will have to apply for a border pass to travel into Queensland.

Queensland residents will also be able to travel to those areas from October 1.

"I think this is a great effort to consider how we can make our border zones more effective," Ms Palaszczuk said.

"These areas have a lot in common with Queensland, they do a lot of their business in Queensland so we believe this is the right measure to take."

CHO flags easing of further restrictions

Deputy Premier Steven Miles said there were 152,000 residents in the border zones who would now be able to travel into Queensland.

"These are people who might live in New South Wales, but many feel more of an affinity with Queensland," Mr Miles said.

He said the changes were possible because of the very low number of coronavirus cases in regional New South Wales…..

While I’m sure Scott Morrison will be quick to take full credit for this extension of the border bubble, I strongly suspect that NSW Labor MLA for Lismore Janelle Saffin (left) would have been working behind the scene to make this happen. 

Ms. Saffin has been the member for Lismore in the NSW Legislative Assembly since 23 March 2019, having previously been the federal MP for Page from 2007 to 2013 and a member of the NSW Legislative Council from 1995 to 2003.

NSW Nationals in disarray in 2020

NSW Nationals Leader and Deputy-Primer John Barilaro is reportedly on mental health leave from 18 September 2020 and MLA for Port Macquarie Leslie Williams quit the Nationals on 20 September to join the NSW Liberal Party.

This junior partner in the Coalition is showing the strain of having such a divisive leader. Barilaro has been at the helm for less than four years and in that time the Nationals have lost four seats in the state parliament - Lismore, Murray, Barwon and now Port Macquarie. 

The Nationals now hold only 12 seats in the 93 seat NSW Legislative Assembly.

The Sydney Morning Herald, 21 September 2020:

Two senior NSW Nationals figures have quit the party and Port Macquarie MP Leslie Williams has had her membership of the Liberals accepted a day after abandoning the Nationals in disgust.

Former Nationals leader and deputy premier Troy Grant last week resigned from the party, while former Water Minister and deputy leader Niall Blair has not renewed his membership.

Mr Grant and Mr Blair did not want to comment on their decision to leave the Nationals, but a source close to Mr Grant said he did not "support the direction of the party".

Ms Williams' membership of the Liberals was rubber-stamped on Monday morning, ensuring she did not have to sit on the crossbench when NSW Parliament resumes on Tuesday.

Her shock resignation on Sunday came after John Barilaro, the NSW Nationals' leader, and his MPs threatened to destroy the Coalition by moving to the crossbench if they did not get a raft of changes over a contested koala planning policy.

Ms Williams released a statement on Sunday saying: "Sadly, the events of the past weeks and months have cemented my decision."

The former head of the New South Wales Young Nationals and chair of its women’s council Jess Price-Purnell has also resigned from the party after being threatened with expulsion from the party because she publicly criticised John Barilaro's handling of the Koala planning policy issue.

Debt laden Clive Palmer's United Australia Party currently being considered for deregistration by the Australian Electoral Commission

Australian Electoral Commission notice of 17 September 2020:

This political party appears to be on the chopping block because it now has less than 500 members.

In recent years Clive Frederick Palmer appears to have exclusively funded this political party through his companies Mineralology Pty Ltd and Palmer Coolum Resort Pty Ltd.

It currently has debts of $8,829,343 of which $8,208,389 is owed to Google Australia Pty Ltd and another $609,039 to IPG Marketing Solutions.

According to an Australian Securities and Investments Commission media release billionaire Clive Palmer is due back in court on 27 November 2020 in relation to; two counts of contravening section 184(2)(a) of the Corporations Act 2001 (Act) - dishonest use of position as a director and two counts of contravening section 408C(1)(d) of the Criminal Code Act 1899 (Qld) – fraud by dishonestly gaining a benefit or advantage in that he allegedly dishonestly obtained a benefit or advantage for Cosmo Developments Pty Ltd and/or the Palmer United Party (PUP) and others by authorising the transfer of $10,000,000 contrary to the purpose for which the funds were being held. It is alleged that he dishonestly used his position as a director of Mineralogy Pty Ltd (Mineralogy), a mining company owned by him, in obtaining that advantage.

Orara Valley branch of NSW National Party dissolved to protect sitting Nats MLA for Coffs Harbour

The Sydney Morning Herald, 20 September 2020:

The NSW Nationals have been accused of branch-stacking and then dissolving a rural branch after members raised questions about the preselection process of a state MP.

The MP, Gurmesh Singh, was selected at a November 2018 meeting for the seat of Coffs Harbour. But office holders of one of the seat's two branches raised doubts about the voting process and his eligibility.

Members of the Orara Valley branch, who had raised the questions, say they turned up to their annual general meeting in July 2019 only to find their numbers had suddenly swelled by almost double.

The newcomers included Andrew Fraser, Mr Singh's predecessor as MP for Coffs Harbour and currently chairman of NSW Nationals. They intervened to spill existing office holders before the meeting ended in chaos.

"We wondered just what the hell had gone on," Barry Lee, the branch's then vice chairman, told The Sun-Herald at his house in Bonville, near Coffs. "We were not experts at fighting these kinds of battles."

After months of emails and letters to party headquarters, then state director Ross Cadell told the members on January 31 – his final day in the role – that Orara was "no longer [a] constitutionally formed branch", effectively dissolving it.....

The local party spat has the potential to create wider ripples for the NSW Nationals, who recently threatened to take down the government of Premier Gladys Berejiklian over koala planning laws they said undermined farmers' rights to clear land as they see fit.

One of the first MPs to complain about the koala guidelines was Mr Singh, who, according to a Channel Seven report, told Planning Minister Rob Stokes that his family's properties could be affected.

Mr Singh told The Sun-Herald he had spoken to Mr Stokes "about various issues" involving the koala planning policy……

Mr Singh referred all questions about his eligibility to run as a Nationals candidate at the 2019 election to the state's central organisation. Mr Singh declined to say whether he had been a member for the requisite six months prior to the election, nor whether he had received a waiver from the party's organisation as an alternative.

The Sun-Herald also asked Mr Fraser for comment about why he changed branches from Coffs to the Orara Valley, and whether his transfer had been approved by the local branch three months before he voted at the July meeting.

Mr Fraser has told the local newspaper he had property in the Orara Valley, making him eligible to switch branches.

Documents seen by the The Sun-Herald show the small branch's numbers swelled from 12 to 23 as a result of those transfers. Mr Cadell, who now works as a lobbyist at Newcastle Ports, defended the party's actions in closing down the Orara branch.

"The rules were entirely followed," he said. "The only problem was they didn't like the rules. It was a large amount of people [who switched] but it is quite regular for people to transfer between branches."

Members, though, describe being bewildered by the sudden interest in their branch from party heavyweights, with one saying: "We abhor branch stacking within the Labor Party but we witnessed it ourselves ... I couldn't believe it."…...

Gurmesh Singh is a blueberry and macadamia nut farmer as well as the NSW Nationals MLA for Coffs Harbour since the March 2019 state election.

He opposed amendments to the NSW Water Act aimed at increasing transparency concerning ownership of water licenses.

Singh along with Chris Gulaptis wwas strongly behind National Party Leader and  NSW Deputy Premier John Barilaro, as he attempted to remove SEPP protections for koalas and koala habitat.

Singh also supports his electorate Coffs Harbour as the site for any future nuclear power station.

It is also alleged that he attempted to quash a Coffs Harbour City Council move to request state and federal funding during the pandemic - apparently even going so far as to enlist the assistance of the Minister for Local Government Shelley Hancock in an attempt to block a specific project.

The Oz Group Co-op Ltd of which Singh was then chair and founding director received $1 million in federal government funding in February 2018 - the same year he stood for National Party preselection. 

There have been a number of  allegations of conflicts of interest on Singh's part since he entered the NSW Parliament.

Were you wondering why so many federal political parties & their candidates never seem to be held accountable for how they fund election campaigns? Well, wonder no more

”The AEC does not appropriately act upon identified non-compliance. It is not making effective use of its enforcement powers and as such has not implemented a graduated approach to managing and acting on identified non-compliance.” [ANAO, “Administration of Financial Disclosure Requirements under the Commonwealth Electoral Act”, 17 September 2020]

After quite a few Australians on social media bragged on Monday of last week about our independent agency conducting federal elections, it seems we all found out three days later that in fact it has rather mucky feet of clay......

Australian National Audit Office (ANAO), Auditor-General Report No. 8 Of 2020–21, Administration of Financial Disclosure Requirements under the Commonwealth Electoral Act, excerpt:

Conclusion

6. The AEC‘s management of the financial disclosures required under Part XX of the Commonwealth Electoral Act 1918 is partially effective.

7. The arrangements that the AEC has in place to administer the financial disclosure scheme are limited in their effectiveness as:

a. across the four year period examined, while the AEC has obtained 5882 annual and election returns, as at 30 June 2020, 75 returns have not been obtained. There have also been delays with the submission of returns to the AEC with 22 per cent of annual returns and 17 per cent of election returns lodged after the legislated due date;

b. the AEC does not make effective use of available data sources to identify entities that may have a disclosure obligation that have not submitted a return;

c. there is insufficient evidence that the returns that have been provided are accurate and complete;

d. there is limited analysis undertaken of returns that are obtained; and

e. risks to the financial disclosure scheme are not managed in accordance with the risk management framework.

8. Compliance monitoring and enforcement activities are partially effective with the result that the AEC is not well placed to provide assurance that disclosure returns are accurate and complete.

Supporting findings

9. Across the four year period examined by the ANAO the AEC has obtained 5882 annual and election returns, and as at 30 June 2020, has not obtained 75 returns. Compliance with legislated timeframes has also been an issue, with 22 per cent of annual returns and 17 per cent of election returns lodged after the legislated due date. Forty four entities have submitted annual returns on average over 30 days late on two or more occasions, with 12 (27 per cent) having lodged, on two or more occasions, on average over 120 days late. Additionally, the AEC does not make effective use of available data sources to identify entities that may have a disclosure obligation and have not submitted a return.

10. There is insufficient evidence that annual and election returns are accurate and complete. While the AEC checks that all fields have been completed and looks for some obvious errors it does not compare the figures disclosed with other data available from internal or external sources, instead relying on its annual compliance review program to provide sufficient evidence that the annual and election returns are accurate and complete.

11. The effectiveness of the analysis undertaken by the AEC is limited. Annual returns submitted by third parties and donors are not analysed. Election returns submitted by candidates, senate groups or election donors are not analysed. The analysis that is undertaken of annual returns submitted by political parties and associated entities is limited as there is no detailed analysis of the financial information, and effective data analytics and data matching techniques are not employed by the AEC.

12. Risks to the financial disclosure scheme have not been managed in accordance with the AEC’s risk management framework. While the risk appetite and tolerance statement of this framework states that the AEC has a low/moderate risk tolerance for risks associated with the disclosure function there is no evidence that risks relating to all entities that have a disclosure obligation have been assessed and are being managed appropriately. Additionally, there is no treatment plan in place for the risk that has been identified by the AEC, being the risk of non-compliance by political parties.

13. While the AEC has identified some lessons that it could learn from other electoral bodies that regulate financial disclosure schemes, there is little evidence of any resulting changes having been made to how the Commonwealth scheme is administered. The AEC has also not taken adequate steps to implement agreed recommendations from a review it commissioned in 2012 of the disclosure compliance function (which concluded that the AEC needed to become more proactive in its approach).

14. The AEC does not apply an appropriate risk based approach to planning and conducting compliance activities.

• While most reviews are planned on the basis of a risk assessment, there are a number of limitations in the risk assessment methodology employed.

• Over the period assessed the AEC did not undertake a compliance review of any election donor returns or of any annual returns that included no financial disclosures (that is, a nil return).

• The number of reviews, and the resources allocated to them, have declined considerably across the five year period analysed. These reductions do not reflect an assessment that the risk of non-disclosure or non-compliance has reduced and this situation is also at odds with the significant growth that has occurred in the total value of receipts and other figures included in the financial disclosure returns provided to the AEC.

15. Planned compliance activities are not implemented in a timely and effective manner. Of the 168 reviews that were planned to have been conducted over the five year period examined by the ANAO, 58 (35 per cent) have not been completed. While completion rates have improved in the last two years this is due to the AEC significantly reducing the number of planned reviews, narrowing the scope of planned reviews, and reducing the value of the transactions being tested. There has also been a marked decline in the number of full reviews that are being conducted on large entities with disclosure obligations.

16. The AEC does not appropriately act upon identified non-compliance. It is not making effective use of its enforcement powers and as such has not implemented a graduated approach to managing and acting on identified non-compliance.

The full report at:

https://www.anao.gov.au/work/performance-audit/administration-financial-disclosure-requirements-under-the-commonwealth-electoral-act