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Rule of law becomes one more problem for lawyer PM
Volume 32 #22
November 8, 2017
Councillors scramble to regain control from staff What is happening inside Council is anyone’s guess, but what we do know is that there is a growing list of transgressions by staff, and in particular by the most senior bureaucrat: general manager Ken Gainger. And the nine councillors who were elected just over a year ago appear to be floundering about without a clue of what to do about it. As a refresher, councillors formulate policy while staff enact that policy. With roughly 260 staff and a $73m budget (November 2016 figures), Council looms large over everything else in the Shire. There’s a lot at stake, and for democracy to work, responsibilities and integrity need to be upheld. First, trees were chopped down without warning in Railway Park and then staff attempted to evict the Byron Environment Centre rotunda with misleading information. Then it emerges that again, there were misleading statements surrounding the push to erect a transit centre on Butler Street Reserve (page 1 story). In both instances, the Byron Bay masterplan leadership team were incorrectly implicated, either by staff or the GM. The Echo has reported that the Byron Bay masterplan leadership team were left out of the masterplan process for both Railway Park and Butler Street; instead staff made it look like it was the leadership’s idea to remove the Railway Park rotunda and plonk a transit centre on Butler Street Reserve. This is looking less like mistakes and more like a pattern. There are plenty of avenues for councillors to tighten up this operation. Just one is to lodge a code of conduct complaint against the general manager to the NSW Office of Local Government. Council’s own Code Of Conduct 2016 policy states under ‘Development decisions’ (page 4): ‘You must ensure that development decisions are properly made and that parties involved in the development process are dealt with fairly.’ The Byron Bay masterplan leadership team are clearly supposed to be involved in the decision process – at least with the Railway Park anyway. They appear to have been treated unfairly. Councillors may also want to consider a review of their delegated authority to the GM (LGA, Section 380, Review of delegations) to ensure legal avenues are not being pursued against residents that damage the reputation of Council (page 1 story). It’s just so bizarre to be at this point, given the GM’s long and respected career in the public service. The GM’s actions do not indicate corruption because there is nothing to be gained other than rapidly unrolling his own vision of Byron Bay at the expense of everyone else. And to his credit, he was quick to apologise for chopping the trees down in the first place. So – where to from here? Hans Lovejoy, editor
The Byron Shire Echo Established 1986
T
aking a break between grave matters of national security and remembering the holocaust in Israel, Malcolm Turnbull said somewhat incongruously that he was having more fun than he had ever had in his life. I don’t know what he was smoking, but I wish he would send me some of it. Alternatively he may have just admitted a devotion to masochism – or, of course, he may be declining into terminal insouciance. But more likely it was simple bravado, a defiant declaration that as everything around him is turning to shit, he is still happily undeterred, or maybe under turd, getting on with the job of delivering good government. Okay, he has lost two ministers to the High Court and was forced to defend a third over what used to be the capital offence of misleading parliament, but he still has what he called a majority of 75 in the House of Representatives. Well, he does until some of them defect, which is not out of the question. And even if one or two do, the government will not fall – he can still rely on at least three of the crossbenchers if it comes to a vote of no confidence. So, what’s the problem? Even when he discovered, belatedly, that the procrastinating Stephen Parry had joined those leaving the building after admitting dual citizenship by descent (or dissent, as one government press release whimsically put it) he was said to be furious, but his public demeanour was as bland as ever: he was disappointed, he said, but it was time to go on with business as usual, which sounded to his beleaguered colleagues like more of a threat than a promise.
And when he returned home to find that one of his closest allies, Josh Frydenberg, could also be embroiled in the chaos, he replied more in sorrow than in anger: it was time to end the witch hunt and to return to the land of common sense and the rule of law. But in fact, common sense and the rule of law was precisely the problem. Initially, Turnbull had maintained that there were no real worries over the outing of three potential dual nationals: the only reason to refer them to the High Court was to establish clarity over section 44 of the constitution.
move on before some unlucky victim of a parking fine asked them to act on their behalf and copped seven years in the slammer as a result. After all, Turnbull reassured the army of nervous Nellies wetting their beds in the party room, this was all a beat up by the elitists in the press gallery: no-one cared about it in the pubs and clubs. And indeed, the voters would much prefer not to have the government’s incompetence, contradictions and general shenanigans not thrust upon them day after day, week after week, month after month. But regrettably they have
Very few, including Barnaby Joyce himself, shared Turnbull’s optimism… by Mungo MacCallum ‘The deputy prime minister,’ our leader thundered, ‘is entitled to sit in this place and the High Court will so hold.’ Actually very few, including Barnaby Joyce himself, shared Turnbull’s optimism, but hey, he was a trained lawyer and he had (or at least he said he had) unimpeachable advice from the government’s current solicitor-general, Stephen Donahue, QC. There were ways around the constitution and surely the Court, in its wisdom, would devise a loophole or two to save the ignorant from themselves. But alas, when the judges did deliver clarity it was with the unanimous and unambiguous verdict that section 44 meant exactly what it said – no room for ducking and weaving. So Turnbull and his Attorney-General, the accidentprone George Brandis, nudged Donaghue in the direction of a passing bus and decided to
no real choice – the government just keeps on keeping on, business as usual. And as usual Turnbull will not, cannot, break the cycle. As almost always, there is an obvious solution: the comprehensive audit of all members and senators being pushed by backbenchers on both sides of the aisle, as well as most of the crossbench and a very large section of the media. Even Bill Shorten, resistant at first, is prepared to work out a formula, and not merely to wedge the government: he, like many others, is concerned that the legitimacy of our system of parliamentary democracy is at stake if things are left to drag on and that witch hunts and, more importantly, real hunts, continue tearing the institutions apart. Common sense and the rule of law would suggest that an audit is the quickest and cleanest way out of the mess, even
if some luckless and negligent individuals are embarrassed. And the habit of a lifetime suggests that sooner or later Turnbull will capitulate – as dilatory as Stephen Parry, and in a way that fails to convince even the most credulous of his sincerity, but he will roll over, insisting, of course, that it will not actually be an audit, but some other mechanism serving precisely the same purpose – so he can still pretend that he is in charge. And he will be hoping like hell that any future victims will be on the Labor side – one byelection, thankfully in a safe seat, is quite enough for the moment. But in fact the last couple of weeks of the parliamentary session will be a write-off anyway, with the same sex marriage result and its aftermath, the QLD election and the wash-up over the One Nation insurgency, and the inevitable resolution over the Manus Island standoff, which Turnbull cannot avoid by saying it is entirely up to Papua New Guinea because they are a sovereign nation. After all, successive Australian prime ministers have, effectively, paid our nearest neighbour to remove Australia’s unwanted responsibilities – people trafficking, some would say, but what the hell, we stopped the boats, and that is something to cling to. God knows, there hasn’t been much else to crow about in this annus horribilis. It will come to an end – or if not an end, then an intermission. Turnbull and his troops will be desperately hoping that 2018 will bring better tidings, but this appears unlikely, given the record of the last two years. Certainly not when Tony Abbott and the right-wing rump are around, and they are not gong away. Happy Hogmanay, Malcolm.
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Nicholas Shand 1948–1996 Founding Editor
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12 November 8, 2017 The Byron Shire Echo
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