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Statement of Events: Jenolan Caves 2004-2006
NSW Government and Jenolan Caves Reserve Trust Management 2004-2006
Is the Government’s $22.5 million funding justified?[1]
YEAR / INCOME $ / GRANTS $ / GOVTPA COST $ / GOVT
FULL COST $
2004-2005 / -368,005 / -1,034,648 / -1,402,653 / -1,402,653
2005-2006 / -5,497,092 / -1,215,739 / -6,712,831 / -8,115,484
2006-2007 / -9,411,040 / -478,711 / -9,889,751 / -18,005,235
2007-2008 / -533,565 / -427,891 / -961,456 / -18,966,691
2008-2009 / 5,494,568 / -6,720,712 / -1,226,144 / -20,192,835
2009-2010 / -4,180,959 / -90,000 / -4,270,959 / -24,463,794
2010-2011 / -1,616,623[2] / -500,000 / -2,116,623 / -26,580,417
2004-2011 / -16,112,716 / -10,467,701 / -26,580,417 / -22,580,417[3]
Why was Senior Counsels’ advice ignored?[4]
7 September 2004: Robertson, T.F. SC advice: “the appointment of the administrator is a nullity, and in any event would be invalid because it was made for an improper purpose”.[5]
4 December 2008: Garnsey J.J. QC advice: “purported appointment in 2004 of Mr. Griffin as administrator… was, in my opinion, invalid and not authorised under the Act”.[6]
Unless Senior Counsel’s advice was reckless, the government dishonestly appropriated property belonging to Rosecharm Pty Ltd, the ultimate shareholder. At the least, this is theft.
PART 1
On 31 January 2003, did the Minister have authority and powers under the National Parks and Wildlife Act 1974 (NSW) to appoint an administrator?
19 June 1996: The Acting Minister for the Environment (the Hon. Bob Debus MP) states,[7] “the Bill ensures independence of the Trust… [Its] object is to amend the Act so as to… establish the Trust to have the care, control and management of the lands so dedicated.
17 October 1996: The Attorney General (the Hon Jeff Shaw QC, MLC) states,[8] “the independence of the Trust is guaranteed by the Act”.
23 April 1997: The National Parks and Wildlife Amendment (Abercrombie, Jenolan and Wombeyan Kast Conservation Reserves) Bill (“the Bill”) received assent.
Amendments in the Bill were set out in the National Parks and Wildlife Amendment (Abercrombie, Jenolan and Wombeyan Kast Conservation Reserves) Act 1997 No 2 (NSW) (“the Act”),[9] and the amendments included:
Section 58V(2): The Trust is appointed as trustee of the Jenolan Caves Reserve Trust lands, and the care, control and management of those lands is vested in the Trust.
Section 58W(1): The Trust has responsibilities, powers, authorities, duties and functions conferred or imposed on it by or under this or any other Act.
Schedule 1, Amendments to the Act note:
Section 5 Definitions: Jenolan Caves Reserve Trust (“the Trust”) means the Jenolan Caves Reserve Trust established by the Act. Member of the Jenolan Caves Reserve Trust Board means a person holding office under section 58ZA.
Section 58ZA(3): The affairs of the Trust are to be managed by the Trust Board.
19 June 1996: The Hon. Bob Debus MP states,[10] “Given the importance of the caves… and highly, well-recognised successful management of them by the Trust… with slightly modified membership will give greater emphasis to conservation focus of the Trust and enhance its reputation, as a conservations manager… [enabling] the highest level of protection for the natural and cultural values of [karst] areas.
Section 58ZA(2):[11] The Trust Board will consist of the following 11 members appointed [all except one member not nominated] by the Minister:
(a) One member elected by the Minister... [with] expertise in karst conservation
(b) Two members nominated by the NSW Aboriginal Land Council
(c) One member nominated by the Director General [NSW Department of the Environment]
(d) One member nominated by the General Manager of Tourism NSW
(e) One member nominated by the Minister for Urban Affairs and Planning
(f) One member nominated by the National Parks Association NSW
(g) One member nominated by the Minister for Local Government
(h) One member nominated by the Australian Speleological Federation
(i) One member nominated by the National Trust (NSW), and
(j) One member nominated by the Nature Conservation Council
PART 2
In 1996 Bob Debus stated in Parliament the Bill being introduced would result in a slightly modified Trust, with emphasis on conservation, that would be an independent statutory body with duties to care, control and manage certain karst lands. It could apply to the Public Reserves Management Fund for capitol works funding.
23 April 1997: Upon receiving assent, the objects of the Act were set out in its long title, which states: “[To] amend the Act to dedicate certain lands as karst conservation reserves... to establish the Trust to manage those reserves.”
19 June 1996: The Hon. Bob Debus introduced the Bill in Parliament and set out the government’s intentions.[12] He noted the government’s purpose in amending the Act was as follows:
(a) The restructured Board will have emphasis on conservation
· The legislation will give greater emphasis to conservation focus of the Trust and enhance its reputation as a conservations manager.
· Jenolan Caves…as a karst conservation reserve under the Act will enable the highest level of protection for the natural and cultural values of those areas.
· The Trust is recognised nationally and internationally as an outstanding manager of these lands.
(b) The Trust, with modified membership, will be a statutory body
· Given the importance of the caves… and highly, well-recognised successful management of them by the Trust… with slightly modified membership [will] continue to manage these areas rather than the Director-General of National Parks and Wildlife.
· The speleological societies have made representations to the Minister seeking confirmation the Trust would be a statutory authority responsible directly to the Minister.
(c) The Bill will ensure the independence of the Trust
· The Bill will ensure the independence of the Trust and enable it to continue its effective planning and management programs. It will increase the ability of the Trust to manage use of the karst conservation areas for which it is responsible.
· [Speleological representative], Mr. Kier Vaughan-Taylor wrote to the Minister requesting that in the karst conservation legislation… the Trust [will] remain independent and continue its program of reform, particularly at Jenolan.
· Australian Speleological Federation, NSW Speleological Council and Sydney University Speleological Society (“the speleological societies”) made representations to the Minister seeking confirmation the independence of the Trust would continue.
(d) To ensure care, control and management of karst lands
· The object of the Bill is to amend the Act so as to… establish the Trust to have the care, control and management of the lands so dedicated.
· The result of this Bill will be to enhance karst conservative in [NSW] and to give additional powers and responsibility to the existing Trust.
· [Jenolan Caves] are regarded by many as a national icon and therefore warrant reservation and protection under the Act.
(e) The Public Reserves Management Fund can assist funding capital works
· [The Trust] will continue to be able to apply for further funding under the Public Reserves Management Fund to assist it with major capital works.
· [It] is financially independent, funding activities from entrance fees to Jenolan Caves; it can seek support from Government through the Public Reserves Management Fund.
17 October 1996: The Attorney General (the Hon Jeff Shaw QC, MLC) responded to questions raised by the Hon Elisabeth Kirkby MLC, based on the above statements made in the Legislative Assembly by the Hon. Bob Debus MP, Acting Minister for the Environment. Hansards notes: [13]
· Kirkby: Did the government make a commitment to establish an independent regime of karst management controlled by the Trust?
· Shaw: The government repeatedly stated the Trust will be an independent body reporting directly to the Minister.
· Kirkby: If so, does the government intend to honour [this] commitment?
· Shaw: Please refer to the Act, the Bill ensures the independence of the proposed Trust in the management of karst areas within its control.
· Kirkby: Did the government make a commitment to enact a separate Karst Conservation Act?
· Shaw: The government gave the following pre-election commitment: “Labor will pass the Karst Conservation Act to protect cave sites such as Jenolan Caves… under the Minister for the Environment” and has now met this commitment.
· Kirkby: If so, does the government intend to honour its commitment?
· Shaw: Please refer to the [amendments], introduced into the Legislative Assembly by the Acting Minister for the Environment, the Hon. Bob Debus, on 19 June 1996.
· Kirkby: Will the Minister provide details of experts used in preparation of the government’s proposed karst conservation legislation?
· Shaw: The government consulted the Trust, speleologists and National Parks in developing proposals.
· Kirkby: What advice did these experts give and to what extent was that advice adopted by the government?
· Shaw: The independence of the Trust is guaranteed by the Act… [it] is the most effective management body and should remain independent from the National Parks.
20 November 1996: Hansards reports statements made by the Hon. Pam Allen, MP, Minister for the Environment, as follows:[14]
(a) Labor will introduce legislation to further protect the caves
· Legislation has been introduced that greatly enhances the protection of the caves, or kast conservation.
· In accordance with commitments made by [Labor] when we went to the recent State election… this legislation provided that the caves will have virtually identical status to that of national parks.
(b) Labor has given assurances about the Trust’s future role
· The Trust [will not]… be smothered by the National Parks and Wildlife Service. The government has given the Trust repeated assurances of this [not happening].
· I do not know why so many caving fraternity... are frightened at the prospect of the caves being accorded virtually identical status to that of national parks.
(c) Concerns raised by the speleological societies are unjustified
· There has never been any question about the value of the Trust or it’s future role. The Trust will [continue to] have responsibility for the care, control and management of the European heritage within [karst] lands.
· I do not think the government could do anything to completely satisfy [speleological societies’] concerns… they are worried Big Brother or Big Sister will take over the Trust.
PART 3
Were the following statements (and actions) by the Minister deceptive and dishonest, and were they known to be untruthful by members of the government?
(a) Under s.58ZD, the Minister can appoint a person to audit the Trust’s affairs however, in August 2003, the Premier appointed Council of Cost and Quality of Government (“CCQG”) members, instead of the Minister, who had specific powers under the Act..
Section 58ZD(1): The Act headed “Inspection of Trust” states “the Minister may appoint a person to inquire into, or carry out an audit of, any of the affairs of the Trust.”[15]
· 20 August 2003: The Trust’s Chair circulated a letter from the Premier to the Minister approving the Minister’s request to the Premier’s Department to undertake an urgent review of the Trust.[16]
· The Premier’s letter noted the task will be undertaken as a Special Review under the auspices of the Council on the Cost and Quality of Government (the CCQG).
· The Minister’s failure to comply with s.58ZD meant he relied on a report by the CCQG to the Premier and Cabinet, on his behalf, and was not provided to the Parliament.
· The CCQG report on the affairs of the Trust was not intended under the Act and was not transparent, as it was not provided to the Parliament, the Trust or the public.
(b) The Government apparently withheld funding stability and safety repairs to Main Road 253 causing public safety concerns and real problems of responsibility raised by the Trust Board, from 1995.
24 July 2002: Trust Board Minutes refer to safety and stability of Main Road 253:[17]
· 20 March 1995: Trust advised RTA it had undertaken major future development study for Jenolan Caves. Engineering consultants (SMEC) raised concerns regarding slope stability of the main Sydney road entry into Jenolan Caves (MR253).
· August 1997: Minister Debus wrote to Lew Laing (RTA) expressing the Trust’s concerns regarding the stability of MR253.
· 27 September 1999: Trust Board meets with RTA. The RTA recognises problem of road stability due to old construction methods and geological processes but [this is not treated as a] matter of priority due to [government] funding constraints.
· 29 September 2000: Trust wrote to RTA expressing concern on stability and RTA proposed a more comprehensive inspection be undertaken.
· 12 September 2001: Trust wrote to RTA again requesting a copy of the RTA’s detailed Slope Risk Assessment report.
The following information relating to MR 253 was published in ‘Minutes of the Jenolan Caves Reserve Trust Board Meeting’, held:
17 December 2002:[18] Trust notes concerns and copy of detailed Slope Risk Assessment report not received. Trust resolved to seek advice from a barrister, as to the terms in which the Trust should be conveying concerns to the government.
Trust resolved to write to the Minister expressing profound dismay regarding the stability of MR253, which is still not resolved. Trust seeks to obtain a copy of Slope Risk Assessment through Freedom of Information.
19 February 2003:[19] Trust Chair advised Slope Risk Assessment report obtained from RTA through FOI received. The Trust resolves to refer report to geotechnical consultants Coffey Geosciences Pty Ltd for their advice on the content of the document.
22 May 2003:[20] Board received Coffey report indicating substantial concerns with MR253 stability, as identified in RTA report. The concerns included at least one section of the road with Assessed Risk Level 1… the highest level of risk to life or property.
Chair unsuccessfully sought to brief Minister or his staff that day. Trust Board recognised this was paramount and requested the Minister for Roads and RTA to secure immediate interim closure of MR253 to secure the safety of Trust staff and visitors.
18 June 2003:[21] The Trust General Manager advised he met RTA that day and confirmed it had a short-term strategy that was acceptable to the Trust.
20 August 2003:[22] The General Manager provided update to the Board on 16 August 2003 RTA meeting. RTA has still not provided its geotechnical survey; given importance of the issue, General Manager will request Director-General, Premier’s Department, to raise this with Chief Executive of the RTA.