A law unto itself : when is power allowed to corrupt due process

The Guardian reported on the 25th of February 2021 "Andrew Constance confirms he ordered the now-sacked transport department head to remove trees 40 metres either side of highways but was refused"

Above: Extract from the Guardian 25th February 2021. The Sydney Morning Herald (March 9th, 2021) has followed this up saying "The state’s top planning bureaucrat warned his counterpart at Transport for NSW that his minister’s directive to clear tens of thousands of trees along major highways potentially posed serious legal implications." Irrespective of the emotive and safety reasoning behind the directive (that was refused) to clear a swathe of 80m along the Princes Highway and Kings Highway the directive was made independent of consideration of due process that required, by law, consideration of environment and legal property boundaries. The head of the disaster management agency, Resilience NSW told a parliamentary hearing in late February 2021 he didn’t know about a ministerial directive to clear 40 metres of trees from each side of State-managed highways after the Black Summer bushfires.

The Shadow Minister for Finance and Small Business Daniel Mookhey also asked Commissioner Shane Fitzsimmons if he had seen the ministerial direction from Transport Minister Andrew Constance to fell millions of trees revealed in budget estimates yesterday.

Commissioner Fitzsimmons confirmed he had not seen the direction until it was shown to him by Labor in the budget estimates hearing.

Mr Mookhey said Minister Constance issued an order that the top transport bureaucrat Rodd Staples declined to carry out.

"Minister Constance ordered the plan to fell millions of trees, his own department opposed it and Commissioner Fitzsimmons knew nothing about it.

“Three months later he was removed from his position for no reason. That cost taxpayers $830,000 all because the Head of the Department provided the Minister impartial advice, the Minister didn’t like it and he removed him", Mr Mookhey said.

“The strategy Mr Staples recommended is the same advice later endorsed by the Royal Commission and for that he was effectively fired.”

Below : TRANSCRIPT EXTRACT Thursday, 25 February 2021 Legislative Council Page 15 UNCORRECTED The Hon. DANIEL MOOKHEY: Minister, we are moving away from the question. I am going to move on. The Premier gave Mr Staples an above average performance rating on 20 August, but yet eight weeks later you spent $830,000 to remove him. Were you conscious of the fact that Mr Staples had passed that performance rating with positive comments from the Premier before you made that decision? Mr ANDREW CONSTANCE: Mr Mookhey, I stand by my answer from before. I am not going to delve into the personal arrangements around Rodd Staples in this forum because you think that there is some sort of political plaything here. The direction of the agency is going to change and as a result there is also a need for the leadership to change. So onwards and upwards. The Hon. DANIEL MOOKHEY: Minister, let us just cut to the chase. Mr ANDREW CONSTANCE: No, I have. I just find you— The Hon. DANIEL MOOKHEY: You removed Mr Staples— The CHAIR: Order! Let the question be asked. Mr ANDREW CONSTANCE: You are the super sleuth of the Labor Party and the upper House. You do not do a particularly good job. I just ask you to— The Hon. DANIEL MOOKHEY: Minister, you removed Mr Staples— Mr ANDREW CONSTANCE: Is this a question or a statement? The Hon. DANIEL MOOKHEY: Well, if you let me ask it— Mr ANDREW CONSTANCE: The premise of your question is based on a statement I have given. The CHAIR: Order! Could we just show a little bit of respect and allow the question to be asked? Mr ANDREW CONSTANCE: Well, these are not questions. These are statements. The Hon. JOHN GRAHAM: Minister, you do not get to review my colleague. Let him ask the questions. Mr ANDREW CONSTANCE: Immature, ridiculous, silly statements. The CHAIR: Order! This is not helping anybody. Mr Mookhey will ask his question. The Hon. DANIEL MOOKHEY: Minister, you removed Mr Staples because fundamentally you resented the fact that he would provide you with impartial advice. Is that correct? Mr ANDREW CONSTANCE: I think you should familiarise yourself with the appropriate legislation and maybe come back with some questions with an appropriate premise on which to ask, because that is just ridiculous. The Hon. DANIEL MOOKHEY: Minister, in the last 18 months how many ministerial guidances did you issue to your department? Mr ANDREW CONSTANCE: What do you mean by that? The Hon. DANIEL MOOKHEY: How many ministerial directions have you issued to your department in the last 18 months? Mr ANDREW CONSTANCE: How many? The Hon. DANIEL MOOKHEY: Yes. Mr ANDREW CONSTANCE: I am happy to take that on notice, but I do remember one which was very clear and very clear to my heart. That was asking them to clear the trees back 40 metres from the Princes Highway after the bushfires. The Hon. DANIEL MOOKHEY: Sorry, can you elaborate on that? What was that direction? Mr ANDREW CONSTANCE: I asked the agency to remove the trees back on the side of the Princes Highway and the other highways that had been fire affected so that we did not see communities cut off for weeks on end during a firestorm event. I also did not want—God forbid—kilometres of traffic build-up when a wildfire might hit them and we lose hundreds of Australians. There is one exact example of me issuing a ministerial— what did you say? The Hon. DANIEL MOOKHEY: Direction. Mr ANDREW CONSTANCE: Direction, yes. The Hon. DANIEL MOOKHEY: When did you issue that direction? Mr ANDREW CONSTANCE: After the bushfires. The Hon. DANIEL MOOKHEY: Do you remember when? Mr ANDREW CONSTANCE: After the bushfires. The Hon. DANIEL MOOKHEY: Was that in writing? Mr ANDREW CONSTANCE: Yes, it was actually. The Hon. DANIEL MOOKHEY: And was your direction complied with? Mr ANDREW CONSTANCE: No, it was not. The Hon. DANIEL MOOKHEY: Why was it not complied with? Mr ANDREW CONSTANCE: I do not know. You would need to ask the department. I think the point that I would make is that what has gone on there is a classic example of what needs to change. Because, let me tell you, after that event, when lives were put at risk in the way that they were put at risk, my expectation was that we would get the trees back from our highways because I am sick of people dying or running off roads and hitting trees. I am sick to death of a major event like that—where trees fell down on roadways for weeks. I am sick to the stomach to think that we could not even get diesel fuel into our fire tankers because our highways were closed because the trees were down all over them. It was a disgrace. So there is an example of me issuing a ministerial order. The Hon. DANIEL MOOKHEY: Do you mind providing us with a copy of your ministerial direction on notice? Mr ANDREW CONSTANCE: Absolutely. In terms of that one, yes, I am happy. You know what, you should take it to the media. Do me a favour. The Hon. DANIEL MOOKHEY: Insofar as you say that your department did not comply with your direction, when did you reach the opinion that the department was not complying with your direction? Mr ANDREW CONSTANCE: Driving up and down the highway. The Hon. DANIEL MOOKHEY: But when? At what time? Mr ANDREW CONSTANCE: I do that all the time. The Hon. DANIEL MOOKHEY: Did you raise that with Mr Staples as a concern that you had with him? Mr ANDREW CONSTANCE: Yes, probably on a couple of occasions actually. The Hon. DANIEL MOOKHEY: What were Mr Staples' reasons for not complying with your direction? Mr ANDREW CONSTANCE: I did not find it particularly acceptable. The thing is that the environment and the biodiversity had changed quite dramatically after that fire event. I wanted the trees back off quickly because all the fauna had gone. The flora had been changed. It was an appropriate time to obviously get those trees back because I have got photographs on my phone of an example where a tree came down on a car and could have killed someone. I, again, think it appropriate—I mean we clear underneath transmission lines extensively, yet for whatever strange reason we seem incapable of getting it back off our major arterial highways in advance of these types of events happening again. I am not going to, given what I went through personally, stand by. I do not care who is in the way. This happened. I am happy to table that letter. The Hon. DANIEL MOOKHEY: I do appreciate that. But was, in your eyes, Mr Staples' inability to follow your direction the reason why he was removed? Mr ANDREW CONSTANCE: No, I have answered your questions on this. The Hon. DANIEL MOOKHEY: A final question on this. Did you ever seek advice as to how many trees would have to be removed for your direction to be complied with? Mr ANDREW CONSTANCE: Again, the point out of this was: Get the trees back at all costs. We have a perfectly good timber industry in this State that could have been engaged to harvest the timber—because you can still harvest timber when it has been blackened by fire. But I reiterate: Go for a drive. Go and actually have a look at the landscape after the fires. You do not have to go far. The point is that if we do not pull the trees back off those roads in advance of the next round of firestorms, then we could end up with a very serious tragedy. Much of the Princes Highway and Kings Highway is located within State Forest. As an addendum to the suggestion that the 80 metres of roadside timber could be harvested Independent NSW MP Justin Field had already slammed (in mid February 2021) an announcement by NSW Forestry Corporation that they were to recommence logging in badly burnt South Coast forests within weeks. The move by NSW Forestry Corp came despite warnings by the NSW Environment Protection Authority (EPA) that a return to logging without special conditions to minimise environmental impacts in burnt forests would likely breach NSW forestry laws and despite an agreement for the Independent NSW Natural Resources Commission to conduct a review into burnt forest logging rules. The EPA released a statement that it has “increased its regulatory presence” after Forestry Corporation wrote to the EPA advising of their withdrawal from negotiations around post-fire logging rules and intention to revert to logging under old forestry rules. NSW MP Justin Field said at the time "This move is the latest in a public fight between the EPA, Forestry Corporation and the Department of Regional NSW, controlled by the Deputy Premier, John Barilaro. "Last year the EPA issued a series of stop-work orders on Forestry Corporation for unlawful forestry operations in burnt forests as a result of community reports. Independent NSW MLC and South Coast resident Justin Field said, "this is a gross act of bad faith by Forestry Corporation and John Barilaro as Forestry Minister. "Forestry Corporation has been guilty of systemic breaches of logging rules on the South Coast which led to stop work orders and numerous investigations and an agreement to seek an independent assessment of what rules should apply in these burnt areas by the NSW Natural Resources Commission. "Restarting logging now will all but destroy what little social licence this industry has left on the South Coast and will ultimately destroy the resource they rely on”, Mr Field said.