This speech was delivered on 8.11.2016 in the NSW Upper House. You can read the full debate online here.
Two years ago a little girl at St Albans wrote:
Dear your Majesty, happy birthday. I hope you had a good one. But there is another reason why I write to you. You see St Albans, NSW, Australia, our common was given to us by Queen Victoria. It is rightly owned by the people but now the council want to take it for money. If you can’t help us that is okay but please pray. Thank you very much.
That shows just how passionate people are about commons such as St Albans and about public land in New South Wales. Reserve lands are for the benefit of all. I note that Her Majesty responded on 1 July 2014 and referred this issue to the Governor-General. This young St Albans commoner wrote to the Governor-General and said:
Dear Mr Governor-General, I am writing to you because I was wondering if you received the letter I wrote to the Queen about our common in St Albans. My name is [X] and I am very worried about our common. The Queen said I should write to you and that you could help. I have copied the letter I got from the Queen for you. Please help.
A drawing is included. The Governor-General wrote and explained that it was not his job to help. Whose job is it to help? It is the job of members of this House to stand together and to protect the commons and public lands that represent 42 per cent of New South Wales. They include pristine patches of environmentally sensitive lands on the coast, caravan parks on the coast that are accessible to the public even if they are not multimillionaires, State forests, recreational reserves in western New South Wales and the vast bulk of the Western Division of this State that is set aside as leased grazing land.
Crown land, whether Hyde Park in the centre of the city, Stuart Park in Wollongong, King Edward Park in Newcastle, Paddington Bowling Club or the Talus Trust in Willoughby, is a precious and increasingly scarce public asset. Any reform to Crown lands must have one primary goal—to serve and protect for the public benefit through principles of ecologically sustainable development. It is a precious public asset. What does the Crown Land Management Bill do? Current provisions in the Crown Lands Act are good but often they are honoured in the breach. Proof of that can be found in the Auditor-General’s report which found that 98 per cent of leases issued in the past few years by the department were issued following closed door one-on-one negotiations with a private provider.
It was a closed door private negotiation, with the public none the wiser. Half the land sales followed exactly the same process. What public protection exists at the moment? The Minister will say the only protection is a 28-day notice in the Government Gazette. Other than that the Minister can do as he likes with Crown land. That is not a good state of play. The Minister said that the way community consultation is prioritised concerning Crown land in New South Wales must change. The Minister is correct. The bill implements some change. The Greens believe there are not enough teeth in the community consultation provisions but I acknowledge that it is a step forward from the present gazettal process.
Of course, there is a whole lot of devil in the detail of this bill. In fact, there are 208 pages of detail, and a few high points on community consultation do not save it for The Greens. If we could guarantee that we would always have a good lands Minister in New South Wales, perhaps we could say that the imperfections in the bill were acceptable. But we have had a bunch of rotten lands Ministers in this State over just the past decade. I would not have left my wallet on the table of the Legislative Council, let alone have granted them unlimited powers.
The Hon. Niall Blair: Test me.
Mr DAVID SHOEBRIDGE: I will keep it in my pocket. We would not have granted them unlimited power over the sale, transfer, and permanent loss of public land. We do not make a bill for a good Minister, we make it for a rotten Minister, because we are in New South Wales and we know that they go but that they also come back. We need robust bills that contain integrity measures so that the public interest in our environment is protected notwithstanding a bad Minister in office. That is the truth in New South Wales. What are some of the real problems in this bill? First, it undermines a key principle, that is, the Rutledge principle, which has been established for the better part of half a decade in New South Wales. It states that when land is set aside for a public purpose it needs to be used for that public purpose. It should not be used for a private purpose, whether it be a function centre or a casino, to overwhelm it and to take it over.
This bill derogates from that; it removes much of the principle of Rutledge from our law. As a result, we will be much the poorer if we allow the bill to be passed without amendment. The Greens have a series of amendments that would reinstate the Rutledge principle. We will not oppose the second reading of this bill because we think it can be amended in Committee. However, if we do not see the amendments, if we do not have Rutledge reinstated, if the environment is not protected, and if we do not have land that is transferred to local councils protected from future sales without further checks and balances, The Greens cannot support the third reading. The Greens have had ongoing negotiations and discussions with the Government and with other members. We know that the Christian Democratic Party has a series of amendments that it will present soon. We have engaged in this process in good faith. I will be frank and say that I think the Government has done likewise over the past couple of weeks.
However, we have not had enough time to examine the 208 pages of this bill, nor has the community had enough time to consider it. I am sure that there are many problems in the bill that have not been found despite our having examined it as best we can over the past two weeks. Problems will also become apparent over the next six to 12 months. The Greens are asking the Minister to defer debate on the proposed amendments to this bill until next year. What will happen between now and February? My understanding is that almost nothing will happen because the department will not be in a position to implement the bill. It has effectively said that it will not be gazetting it for 12 months. There is nothing to be gained from rushing through this legislation, other than allowing some big holes to be missed by the Legislature. That is why The Greens support the deferral of the Committee stage of this bill.
We are not playing silly buggers with the Government or trying to prevent the passage of this legislation. We are making a good faith gesture to the Government and the other parties in this place in an attempt to get it right. I want to be clear about The Greens’ concerns about local councils. This bill will effectively allow land to be identified as what the Minister calls “local land”, and then for the Minister simply to transfer it to local councils with, as I read it, a set of criteria that may or may not be established under an order that may or may not be issued by the Minister in due course. Provided the local council agrees and there is no Aboriginal land claim, or, if there is, the land council agrees, it can be transferred to the local council, and that is it.
It exits the protections given to Crown land in New South Wales. It becomes entirely freehold land that is owned by the local council. Council can do what it likes with it. The Minister will say—and he is right—that only a small class of land will be handed over to councils as operational land. Land housing sewerage plants and waste facilities will be handed over as operational land, and the rest will be handed over as community land. Why is that distinction important? It is important because a council can sell operational land. It cannot sell community land. We should say, “That is okay. Potentially, vast tracts of land in New South Wales will be protected, even if handed over to councils, because most of that land will be transferred as community land, and while it is community land it cannot be sold by council. Rest assured, people of New South Wales, this large land transfer will not affect you because the land will be kept in public hands.”
That is true up to a point. Any local council can commence an inquiry into any parcel of community land or a variety of parcels of community land. A council may have 10 parcels of community land. It can have a public inquiry. It can get someone to talk to the community about whether the land should be reclassified from community land to operational land and write a report on it. Let us pick somewhere at random, such as Wyong. Let us say that a future council in the Wyong area has that kind of public consultation. We know it has an agenda to sell the land it already owns as community land. If council has an inquiry, the community might round on it and say, “Do not reclassify these parks. You were given them by the State Government under this transfer. We love our parks. Do not dare to reclassify our parks as operational land and sell them off. We take our children there. We go walking there.” Good councils will listen to that. They will say, “We have listened to the community. We will not reclassify the land. We will keep it as a park.”
There is nothing in the Local Government Act 1993 to stop a council saying, “I do not agree with those submissions. We think they are a bunch of ratbags. Regardless of the submissions, we are going to reclassify the land as operational. We are going to sell it to developers.” There goes the park; here comes a block of units. That is the truth. That is the prospect for large parts of Crown land that will be transferred to councils under the provisions of this bill. There are no further checks and balances. The land goes off to the council, and a good council will protect it but a bad council will not. This might surprise members in this Chamber, but New South Wales occasionally has bad councils. Has anyone been to Auburn recently? Has anyone seen the misery that has come from the rezoning of Canterbury? Has anyone had a look at councils behaving badly in New South Wales? I think there are some terrific councils in New South Wales. I would nominate my local council of Woollahra as a bloody good council. The City of Sydney is a great council. I love Cabonne Council. I used to love Tumbarumba Shire Council until the Government blew it up. There are some terrific councils around New South Wales, but there are some that one would not—
The Hon.Walt Secord: You did not mention Byron.
Mr DAVID SHOEBRIDGE: I note the interjection. I absolutely love Byron.
The Hon. Penny Sharpe: You did not mention Shellharbour.
Mr DAVID SHOEBRIDGE: I did not mention Shellharbour because there is Shoalhaven and Bellingen.
The Hon.Walt Secord: He did not mention those two councils.
DEPUTY PRESIDENT ( The Hon. Shayne Mallard ): Order! The Deputy Leader of the Opposition will come to order.
Mr DAVID SHOEBRIDGE: I take the Deputy Leader of the Opposition’s point. I should mention those three terrific councils that are headed by directly elected Greens mayors. What a wonderful outcome that was: Byron, Bellingen and Shoalhaven. They are three fabulous councils. I love the Deputy Leader of the Opposition’s acknowledgement of that. Our supporters, those who voted for The Greens on those councils, did so because they believe in checks and balances in government. They do not want to see large chunks of Crown land and public land handed over to any council without there being further constraint on the sale. The Greens have some amendments, which we will no doubt move sometime after midnight, that will put in place an arrangement that says once land is transferred to a local council then it cannot be reclassified as operational land without the consent of a Crown lands commissioner appointed under this bill.
We say that in doing that the Crown Lands Commissioner needs to look at the public interest—and that would be a check and balance. With that amendment in the bill we could support that kind of proposal for transfer to local councils. We would have some concerns but I acknowledge there would be some real benefit in transferring some land to local councils, but not so that the State Government can then walk away and divest itself of any responsibility. That is a recipe for disaster and exploitation.
I said earlier that this bill derogates from Rutledge. That is because one of the key principles that has been established in case after case, and most recently in the King Edward Park case, is that when land is set aside for a public purpose no land manager can then allow a private interest to take it over and steal the profits generated from that land. There can be occasions on which Crown land can be leased for a private purpose, provided it is satisfying the public purpose and the income that is generated is put back into the land to satisfy the public purpose for which it has been reserved.
One can give a trite example of Taronga Zoo. Taronga Zoo occupies a piece of public land which one must pay an entrance fee to get into, but a major public purpose is being satisfied there and the entrance fee is ploughed back into the zoo. This is not the time to have a Greens discussion about all the merits of the zoo, but there is an evident public purpose for the zoo and the money is reallocated to it. But what about a private function centre that squats on King Edward Park in Newcastle? That offends Rutledge. That was set aside by the Land and Environment Court as offending Rutledge but it is likely not to offend this bill. If someone is looking for a case study in why we cannot support the bill without amendment, there it is. It is not just that it is a function centre; it could be a casino, a block of flats or whatever development is approved. We need to retain and return those protections.
One of the key misses in this bill is the failure to put ecologically sustainable development up front. We do not want to reinvent the wheel on ecologically sustainable development. We want to adopt the definition that has been accepted now for two decades in this State. It is the subject of a number of cases and interpretations and picks up principles like intergenerational equity and the proportionality principle. Of course that should be a part of land management. We also believe that the Crown land management principles that exist in the current Act must be translated into this bill because they talk about some really important things such as protecting the public interest and protecting the environmental and social values of land. They would put some real content into the bill. Currently the bill is just a set of machinery provisions and does not inform Crown land managers about the kinds of principles they should be applying when they are looking at Crown land. So we say reinstate the Crown land management principles in this bill.
Finally, one of those environmental, social and economic assets that really is at peril with this legislation is travelling stock routes. Travelling stock routes in the west and the east of this State are not only vital for the economic interests of our agricultural sector in New South Wales; often, particularly in western New South Wales, those travelling stock routes are the last remaining vestiges of vegetation that used to cover vast flood lands. Those last remaining vestiges of vegetation are really linkages that run throughout western and eastern New South Wales—those little rivers of ecological density are extraordinary. What I find extraordinary is that there is no specific mention of them and no guaranteed protection of them in the bill. They are at risk. When that is added to the removal of the commons, the large scale risks to New South Wales of rushing this bill through without further investigation become clear.
There are things in the bill that are good—I acknowledge them—but there are so many risks in this bill. A good Minister will control it, but in the hands of a bad Minister this is a blueprint for sale, privatisation and private exploitation of the public estate of New South Wales, which is 42 per cent of New South Wales. That is why we cannot support it without substantial amendment. That is why I look forward to a pretty rugged exchange when we consider the bill in Committee. With those observations I will be interested to see how much of the public interest is protected by a majority of this House during the debate tonight.