Mr BAYLEY (Clark) – Honourable Speaker, a vote will be required. I move –
That the House refers the Minister for Business, Industry and Resources, the Hon. Eric Abetz MP, to the Privileges and Conduct Committee to investigate and report upon whether he deliberately misrepresented the MinterEllison Stadium representation to the Tasmanian Planning Commission as being impartial legal advice and legal opinion, and whether or not this is a breach of the Code of Conduct contained in the Standing Orders of the House of Assembly.
This is a serious issue and we certainly do not take a referral to Privileges lightly. Such is the severity of this issue in our minds that we are taking this action and are seeking the support of the House for this motion and for the referral of the minister to the Privileges Committee.
I will take a moment to remind the House that this motion is not seeking a finding of guilt. This is not a censure. This is not a no‑confidence motion. This is a referral to Privileges. While we Greens are convinced, and I will lay out, that the minister has repeatedly misled the public and the parliament, all in a transparent attempt to construct a justification for abandoning the stadium POSS process and orchestrating a parliamentary approval for the Macquarie Point Stadium, despite its so many flaws, here in this place you need not be convinced of that. You may not be convinced of that and that should not preclude you from supporting this motion. It is the job of the Privileges and Conduct Committee to investigate and hear the evidence, to deliberate on the context and circumstance and to adjudicate on the question of misleading, and thus consistency with the Tasmanian parliament members’ code of conduct.
Via this motion I am simply seeking a referral. It is the committee’s job to judge and that is an important distinction. I remind the House of our obligations under the Code of Conduct:
A member must only make statements in parliament and in public that are, to the best of their knowledge, accurate and honest.
A member must not mislead Parliament or the public in statements that they make.
Whether any misleading was intentional or unintentional, a Member is obliged to correct the Parliamentary record, or the public record, at the earliest opportunity in a manner that is appropriate to the circumstances.
Two days ago, I wrote to the minister laying out our concerns with regards to his public and parliamentary statements and calling on him to correct the parliamentary and the public record. While I have provided a copy of the letter to members, I will take the time to read it into Hansard.
Dear Minister,
I write regarding recent statements you have made in the media and Parliament. In seeking to manufacture a pretense for your government to bypass the Tasmanian Planning Commission and fast-track approval of the stadium through special legislation, you have knowingly misled the Tasmanian public and the parliament. You have made objectively misleading and dishonest statements to characterise an argumentative submission made to the Planning Commission as being ‘legal advice’ and impartial ‘legal opinion’. That has been provided to the Macquarie Point Development Corporation (MPDC).
In Parliament on 9 April, you said,
That is where the MinterEllison legal opinion is so strong and so robust. It might be a multinational firm, but does that in any way, shape or form undermine the robustness and integrity of the legal opinion? Not at all. Indeed, Mr Bayley could not lay a glove on it for very good reason, because it is robust, it is good, it stands for itself and it is obvious.
On 14 April, the minister told ABC Mornings program:
MinterEllison have provided a very robust legal advice to the Macquarie Point Development Corporation in which they said the report contains errors of law, approach and analysis.
Both these statements are dishonest and inaccurate. As you know, law firm MinterEllison has been acting on behalf of Macquarie Point Development Corporation through the Project of State Significance assessment process. Immediately following the release of the Planning Commission’s draft Integrated Assessment Report, MinterEllison collaborated with the Government to draft a submission to the Commission as part of its consultation process. This submission, known in Law as a representation is, by its own description, an argument made on behalf of Macquarie Point Development Corporation to further its own agenda and make its case within the stadium statutory assessment process. It is not impartial legal advice or opinion. Far from it. In fact, DPAC and the Macquarie Point Development Corporation themselves had a direct hand in writing parts of this submission.
You have made the statements I have quoted in the full knowledge they are misleading. In reference to this representation you told ABC Stateline: ‘as a lawyer myself, having read that opinion, I thought it was robust.’ As a lawyer, your acknowledgement of having read this representation establishes that you cannot plead ignorance on this matter. No lawyer would be ignorant or incompetent enough to not know the basic and fundamental difference between a representation made to further a proponent’s case in a statutory assessment process and impartial legal advice.
Given the above, it is clear you have knowingly misled Parliament and the public by deliberately misrepresenting the MinterEllison letter as legal advice. You have done this to further your government’s goal of undermining public trust in the independent expert panel conducting the stadium’s assessment and to build the case for an extraordinary political intervention through a corrupted legislative approval process. As Leader of Government Business in the House of Assembly, you should be well aware your conduct is in breach of the Standing Orders of the Tasmanian Parliament.
Further Standing Orders, I call on you to correct the parliamentary and public record. We expect you to do so prior to Question Time on Tuesday, May 6 –
That was yesterday.
Failure to do so will leave the Greens no choice but to pursue accountability through the Parliament.
Yours sincerely,
Vica Bayley MP.
Here we are. The Minister failed to address the issue and I am here seeking your support to refer him to Privileges.
Before I go into the substance of the issue and why it needs to be investigated, I will outline that the threshold for referral is not necessarily all that high, according to some.
On 15 April on WIN News, the member for Bass, Mr Ferguson, was reported as saying that he will write to the Privileges Committee and the Speaker of the House regarding the conduct of a former member of this place, Ms Rebecca White. This was because of his concern about Ms White’s public statements that former federal member for Lyons, Brian Mitchell, supported her nomination. Mr Mitchell did not support Ms White publicly, but seemingly also sought preselection and thus was eligible for compensation as a sitting member not preselected to contest the seat in last week’s election. For Mr Ferguson, this was evidence of a mistruth and justified action by the Privileges and Conduct Committee.
The most recent actual referral to Privileges – minister Barnett as Energy minister in September 2023, had significantly more substance. Minister Barnett failed to adhere to an order of the House to provide members updated cost estimates for Marinus Link, the North West Transmission Developments and the Battery of the Nation projects. More recently, just a few weeks ago, while not a referral to Privileges, there was a no-confidence advance in minister Duigan by the opposition. It has to be said, that motion relied significantly on hearsay and subjective analysis and advice, and it lacked evidence. It failed.
In this case it is very clear that minister Abetz did not fully comply with the order that we as this House passed, including the amendments that the Labor Party introduced into this motion. We are not seeking redress for that in this case. We do not feel as if the minister fully complied with the order. The Labor Party passed an amendment to the motion that asked them to articulate the reasons why they would not release the information that was requested. They did not release all the information that was requested and they did not give us the reasons for that, but the information that was released was telling. By its own admission, the package of information tabled in parliament only addressed the first of four requests within the order. There was no justification for the withholding of information as requested by Mr Willie in his amendment.
The information we did get was damning enough. It demonstrated that the board of the Macquarie Point Development Corporation and the head of the State Service directly inputted into the representation submitted to the Tasmanian Planning Commission by law firm MinterEllison. MinterEllison has been engaged by the Macquarie Point Development Corporation since last year. This representation showed that there was direct involvement in writing it by agents of government.
To recap, on 31 March, in line with its statutory timelines, at 4.00 p.m. the TPC published its draft integrated assessment report for the Macquarie Point stadium. The report is damning. Whether it is the costs overshadowing benefits; traffic and pedestrian issues; flooding; impacts on heritage values, including the otherwise sacred Cenotaph; emergency evacuation; or site contamination and waste disposal; the TPC has raised a litany of issues associated with the stadium, many of which cannot be mitigated by design adjustments or conditions. The impact on the Cenotaph is case in point. The stadium will have an impact on the Cenotaph, the values of the Cenotaph and the ambience of the Cenotaph. That cannot be addressed. They cannot be designed away and they cannot be conditioned away.
By 3 April, the Macquarie Point Development Corporation had published a media statement and publicly released a representation to the TPC consultation process addressed to the TPC on MinterEllison letterhead. By its own admission, the letter is the first of three representations that the commission were told it could expect. This is important. The representation is a defence of the Macquarie Point Development Corporation’s case and a push back on the planning commission. We do not have a problem with the representation, as it is the right of the proponent to make a representation into that space. Where it does go wrong, though, is that it seeks to undermine the credibility of the planning commission and its report. I quote directly from that representation:
The draft IAR does not comply with the requirements of the State Policies and Projects Act. It contains errors of law, approach and analysis. It is argumentative and lacks balance to support the making of representations. It should be given limited, if any, weight.
Documents released in that parliamentary order demonstrate that this claim and this context is exactly what the government agents and stadium proponents injected into the representation. The document release has a draft of the representation and an email communication demonstrating feedback, including via a track change document and email input from the head of the State Service.
Let me read into Hansard some of this correspondence. This is from Anne Beach, the CEO of Macquarie Point Development Corporation, to the lawyer at 6.29 p.m. on Wednesday 2 April:
Thanks, Josh. Attached are the tracked amendments we have just worked through with the board. Thank you for joining the meeting at short notice. Can you please review and send through a final this evening for our final review and for submission by Minters tomorrow morning?
Thanks for your help,
Anne.
Then another one, from the head of the State Service, no less, Kathrine Morgan‑Wicks. This was at 9.48 p.m. on the same day, Wednesday 2 April. It is an email to a whole raft of people, including the lawyer, the author of the representation. It says, amongst other things, a few typos and corrections:
3.2b, it goes beyond the state economy. It questions the validity of government budget and investment, debt, decisions and corresponding impacts on credit rating. Perhaps something like –
And then she produces a paragraph:
‘The discussion and assessment of the business and investment case, which appears to extend to matters of the state economy, budget decisions, total state sector debt and credit rating, including the alternative use of funds, is irrelevant and beyond the reasonable scope of economic considerations for the purposes of an assessment under the SPP Act and the objectives of the resource management and planning system.’
This, of course, can be picked up in the representation too, if it is not too late. Thank you for the opportunity prior to release.
Kind regards.
Of course, that whole paragraph, word for word, is included in the representation, which is completely fine, if it is a representation, but this is the distinction. It is the right of the proponent to input and to advocate its position. It might be aggressive, it might be intimidatory to have it submitted by a law firm on a law firm’s letterhead, but it is not necessarily untoward.
The Tasmanian Planning Commission pushed back. They have written to the Macquarie Point Development Corporation four times now about these issues, once in January, another time on 8 April, another time on 15 April, and on 30 April they wrote again, requesting additional reports. I will read into Hansard a little bit of the email from the Planning Commission’s chair, Mr John Ramsay, back to the lawyer from MinterEllison:
I refer to the MinterEllison representation of 3 April last on behalf of the Crown Right of Tasmania. The commission undertakes its assessment tasks in accordance with its legal obligations and responsibilities. The Macquarie Point Development Corporation has been aware of the commission’s view of the scope of the assessment since the publication of the guidelines, and its view was subsequently confirmed to the Macquarie Point Development Corporation in my correspondence to the Macquarie Point Development Corporation of 22 January last.
Good on him. Good on Mr Ramsay for pushing back on this representation, because it is abundantly clear that the representation is little more than a vehicle for the Macquarie Point Development Corporation and now the government, through minister Abetz and indeed the Premier, to attack the integrity and credibility of the Planning Commission panel. This is where the representation, or the legal advice, as Mr Abetz has characterised it, comes in as being so important.
The distinction is really important. It may not look like a big deal to some from the outside. Representation, legal advice, legal opinion: what is the difference? It is on a legal firm’s letterhead. Some people may see this and think that I am splitting hairs, but the reality is that this representation has been used for an unprecedented attack on the independence of the planning commission by the highest level of government in this state.
This is their own planning commission, within their own process, which the Premier himself came to this House to establish. Minister Abetz has been on ABC Stateline, on ABC Mornings and, indeed, has said this numerous times in the parliament. Together, minister Abetz, and indeed the Premier – but minister Abetz is who this motion is focused on – has questioned the integrity of the Tasmanian Planning Commission. He has called them biased and said they have an apprehended bias. This is slanderous if not defamatory. The TPC panel is comprised of experts. It has an ex-deputy solicitor‑general, it has an ex-treasury boss, it has experts in planning and it has experts in administration, and Mr Ramsay has been a chair of the Planning Commission for a long time. This is why this is so critical.
Claiming this representation is legal advice, with its government-led criticisms of the TPC, is the basis upon which the government is trying to attempt to take down the TPC and justify its special railroad legislation through this parliament. Pointing to the representation as a reason to attack the Tasmanian Planning Commission, discount its report and the report’s findings, and cook up justifications for special legislation is exactly what this government has been trying to do by passing it off as independent, impartial legal advice when it is anything but. It is a representation written by a lawyer with input from the proponent itself. The Premier, too – and this is where it gets despicable – the Premier too has engaged in this kind of behaviour in a story in The Age, where the journalist paraphrases him saying –
Rockliff, who hit out the report for failing to be independent, doubled down on his initial criticism.
It continues with a direct quote from the Premier –
My view is they went in there with a predetermined view. From my point of view, it wasn’t objective.
That is a remarkable statement for a premier to make about the Planning Commission, about the experts on that panel, and about the way they do their work. It is a cook-up that goes all the way to the top of this government and it is completely shameful. That is why this is really important. It is why language is really important. Minister Abetz waves around the representation and calls it legal advice. He calls it legal opinion. I will say again: in parliament, he said:
This is where the MinterEllison legal opinion is so strong and so robust.
Calling it legal opinion when it is little more than a representation on behalf of a client, on behalf of a proponent for a development, it is a representation. It is not independent legal advice. On 14 April, again I will read it in because it is really critical, minister Abetz told ABC Mornings:
MinterEllison have provided very robust legal advice to the Macquarie Point Development Corporation, in which they say the report contains errors of law, approach and analysis.
Again, I remind members that this is not robust legal advice. This is a representation into a planning process that has had direct editing and track changes; it is a document coming from the proponent itself. It is not independent legal advice. It is not independent legal opinion. It is a representation, and I say again, it is a legitimate representation submitted by a lawyer on behalf of a proponent, but it is not legal advice and the distinction is really important. A representation worked up with the proponent is not independent legal advice and it is not even legal opinion.
Minister Abetz told ABC Stateline –
As a lawyer myself, having read that opinion, I thought it was robust.
As a lawyer, it is clear to us that Minister Abetz has misled both the parliament and the public. Any lawyer should know that a representation into which the client, the proponent, has sent track changes to be accepted by the lawyer as part of a submission should know that it is not legal advice, it is not legal opinion. Nevertheless, it has been waved around and used as a justification for a quite remarkable and despicable attack on the reputation, the integrity, the credibility and the ability indeed of individuals and a statutory authority here in this state. It is clear to us that minister Abetz has misled both the parliament and the public. However, I say again: it does not need to be clear to you as members. All you need to be convinced about is that there is a case to answer here. You only need to understand that this is looking really fishy, that it looks really dodgy to be waving around a track change document and calling it legal advice. Ultimately, it is the job of the Privileges and Conduct Committee to really dig into this issue, to call forward witnesses, to investigate, to get proper legal advice about the status and ultimately to make a decision.
We have seen, through the Spirits fiasco, that this government is prone to making bad decisions and trying to cover them up, trying to get away with them and they just dig themselves deeper into a hole.
It is the same when it comes to the stadium. Yes, the Labor Party is now backing the stadium. It is now going to back the government’s legislation, but that does not mean you need to back a minister misrepresenting evidence, misrepresenting a representation into a planning process and trying to pass it off as legal advice, trying to pass it off as some kind of impartial, objective, legal opinion that then undermines the credibility of the entire planning commission.
We believe this is a critically important issue for the House to take a stand on to make sure that this minister is referred to the Privileges and Conduct Committee for investigation. Prima facie the minister has misled both this parliament and the public. Prima facie he has breached the code of conduct and it is the job of the Privileges and Conduct Committee to have a good close, hard look at that so that this government, which makes a virtue out of misinformation, out of mistruths, out of deception, and out of obfuscation, is held to account; so that ultimately this parliament says that this is not good enough and they should not go on anymore.
This is not independent legal advice or opinion. This is a political document submitted to a planning process by a proponent for a billion-dollar-plus project, and minister Abetz should be held to account for misrepresenting it. The government as a whole should be held to account for using that cooked-up pretence as a mechanism to attack the planning commission, attack its integrity, attack its work and ultimately abandon, it seems, the POSS process in lieu of a fast-track parliamentary assessment process where the government sits in a room and workshops with the EPA and other agencies to work out conditions. This is a travesty in the making. It is a trainwreck of immense proportions happening day by day and bad decision by bad decision. The least we in this place can do is try to hold ministers to account for the things they do and say, and refer minister Abetz to Privileges for them to look deeply into this issue. It is absolutely justified, it is absolutely necessary, and I urge all members to support this motion.
