Rule of law

Special treatment for environmentalists corrupts the rule of law


Legal affairs editor Chris Merritt in The Australian today:

The next time some lobby group demands special treatment by federal law, keep in mind how things turned out when politicians caved in to green activists. It cost taxpayers dearly.

The losses are real but they are not the only problem. [A] fundamental tenet of the rule of law has been corrupted by the special treatment of green activists. The most obvious consequence is the ease with which these groups have been using the courts to delay major development projects.

By giving green activists automatic standing to challenge major developments, the politicians in Canberra have given them a level of access to the courts that is denied to everyone else.

This has made it possible for millions of dollars in taxpayers’ funds — and shareholders’ funds — to be lost.

Continue reading here.


Senate committee backs push to remove special privileges for environmentalists


This is from the Senate Environment and Communications Legislation Committee’s report of the inquiry into amendments which would remove the special privilege available to environmentalists to conduct activist litigation:

The committee also notes the arguments put forward by those supporting the repeal of section 487, such as the costs to proponents and consequences for economic activity when major development projects are delayed by judicial review sought by groups granted standing by section 487. The committee also acknowledges the significant cost of these challenges to the Commonwealth. The Department of the Environment indicated that it had not recovered costs in the majority of cases where the Commonwealth had been successful in defending the validity of a decision.

The committee considers that the repeal of section 487 will not diminish the protection of Australia’s environment and the conservation of biodiversity and heritage provided by the [Environment Protection and Biodiversity Conservation Act 1999]. … The committee recommends that the Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 be passed.


Another problem with the ICAC “reforms”

The NSW government assures us that ICAC won’t be able to initiate prosecutions without DPP approval. A report in today’s Australian reveals how problematic that still is:

The NSW corruption watchdog handed over evidence to the ­Director of Public Prosecutions that allegedly omitted statements made in favour of former NSW SES commissioner Murray Kear before his criminal trial.

State Emergency Service assistant commissioner Mark Morrow gave a long statement to ICAC that is understood to include material supporting Mr Kear that was then not provided to the DPP.

The evidence emerged … on October 14 in a case between ICAC and Mr Kear, who is charged with breaching the Whistleblowers Act. The alleged omission casts doubt over the ­effectiveness of NSW Premier Mike Baird’s compromise for the DPP to act as a check on ICAC.

The latest claim follows ICAC’s investigation into former Labor minister Ian Macdonald — who faces charges of misconduct in public office — where evidence ­favourable to him by Labor frontbencher Anthony Albanese was suppressed.

The practice of suppressing ­exculpatory evidence from public hearings could be even more widespread, with ICAC Inspector David Levine confirming he had received several complaints.


NSW Young Liberal President warns against “muscled-up” ICAC


NSW Young Liberal President Alex Dore has a terrific piece in the Sydney Morning Herald today criticising moves to grant increased powers to the Independent Commission Against Corruption:

…it makes sense to reconsider ICAC’s structure and reach, but time and time again ICAC has sought to do the opposite. Rather than work within the confines of its jurisdiction, it has sought to expand it.

Earlier this year, it sought to argue that all sorts of acts – for example, lying to a public official – should constitute “corrupt conduct” and therefore fit within the jurisdiction of ICAC to investigate.

It took an appeal by the eminently capable Margaret Cunneen for the NSW Supreme Court and the High Court to reject ICAC’s overstep. How many others could command Ms Cunneen’s intellect, resources, and guts to successfully do the same?

“[ICAC’s interpretation] would also enable the ICAC to exercise its extraordinary coercive powers (with consequent abrogation of fundamental rights and privileges) in areas ranging well beyond the ordinary understanding of corruption in public administration,” read the majority High Court judgment.

But this defeat, and the corollary legal costs, has done nothing to dent ICAC’s ambitions. This week, the state government has given ICAC the power to launch criminal prosecutions for common law offences by issuing a court attendance notice on the advice of the Director of Public Prosecutions. It insists that it is simply restoring powers rejected by a local court judgment and that it can already do so for statutory offences.

In a liberal democracy, conservatism demands that institutions that have served us well be protected: the rule of law, including procedural fairness, is amongst them.

One of the great things about Australians is our healthy skepticism of any institution which gains too much power, and if we’re honest with ourselves, isn’t that exactly what ICAC has become?

Read the full article here.


ICAC’s “abuse of the process”


From The Australian today:

ICAC investigator Paul Grainger arrived early on the morning of July 30 last year, with a “notice to produce” when he ordered sales associate Sophia Tilley and her boyfriend Stephen Wyllie to hand over their mobile phones.

ICAC officers Tim Fox and Sharon Loder took two mobile phones belonging to Ms Cunneen, a deputy senior crown prosecutor, using a similar form, signed by ICAC Commissioner Megan Latham on July 23 last year.

[Alan Sullivan QC] said the purpose of a “notice to produce” was to require a person’s attendance at a nominated time, at which point they would produce the requested materials.

It would be quite clearly, in my view, an abuse of the process to try to rely upon this document for an officer of ICAC to attend at someone’s house and then say, ‘I’m attending here, you give the documents to me’,” he said. The notice “cannot be used as a substitute for a search warrant“.

And yet, the NSW parliament is debating whether or not to give this lawless agency the power to launch its own prosecutions. The government has been pushed to amend a bill to specify that the power to launch a prosecution does not apply to ICAC unless it has approval from the Crown prosecutors, which is a marginal improvement to a bad law.

Let’s talk about abolition instead.


New challenge to Adani Mine


The Australian Conservation Foundation (ACF) has announced today that it will be challenging the federal government’s approval of Adani’s Carmichael coal mine in remote western Queensland.

Quelle surprise!

The ACF is alleging that the minister may not have considered the effect of the mine’s carbon dioxide emissions on the Great Barrier Reef – or the mine’s potential impact on the Black Throated Finch.

If the mine does manage to get up, it will provide thousands of jobs, billions in taxation and export income over its predicted 60 year life, and provide the means to open up that part of Queensland to significant long-term economic development.

FreedomWatch warned last month that environmentalists had emailed supporters to say that they were going to run another case – as soon as they figured out who would do it and “who will play which roles”.

This is vexatious litigation pure and simple. The so-called right to object is being twisted into a self-declared right to obstruct.

The federal governments proposed amendments to federal environmental laws to only allow genuinely aggrieved people to appeal approvals must be revisited and passed as soon as possible.


High Court finds procedural fairness denied

Interesting case decided in the High Court this week:

Judges unanimously found the man, referred to only as WZARH, who arrived at Christmas Island in 2010, presented his case for refugee protection to an independent reviewer.

But his case was taken over by a second reviewer who rejected the claim after considering the transcript and audio recording of the first interview and without conducting a second interview.

The judges ruled that procedural fairness required that the man be informed the review process had changed, allowing him to be heard on how it should proceed.

See the summary, and the Court’s full judgment here.