Tasmanian Times

Environment

The trial of Michelle O’Byrne

GERALDINE ALLAN. Opening Address, Part 2. The court resumes after adjournment.

Thank-you your Honour for ruling on that preliminary point.

Ladies and gentlemen of the jury, you have just read that His Honour has approved my amendments to the indictment.

Just to be clear members of the jury, ordinarily these preliminary matters such as the appropriateness of the charges and whether there should be change to the indictment would be dealt with in pre-trial hearings and compulsory conferences and those hearings are usually privileged.

However, in this instance of the People?s Court of Tasmania all discussion is open to the public, and thus must be conducted in this ? an open forum, in fairness to both the prosecution and defence.

Regrettably, because the defendant has failed to lodge a defence there has not been a plea of ?guilty? or ?not guilty?. That is there has been no plea at all. Nor has the defendant provided this court with any disclosures/discovery.

Your Honour the prosecution now proceeds reminding the jury that the defendant has a right to remain silent and that it (the prosecution) must establish beyond reasonable doubt the guilt of the accused without any assistance from the accused.

The amended indictment now reads: –

MICHELLE ANNE O?BYRNE MHA is charged with two offences: –

1. Failing to discharge her obligations as minister under the Act [Environmental Management and Pollution Control Act 1994 (N0. 44 of 1994)] and with occasioning material and/or serious environmental harm to CLIVE STOTT and RICHARD BUTLER, both of the Tamar valley, by continuing to allow/promote, despite continued requests, various planned burns across Tasmania and pernicious smoke in and around the Tamar valley.

2. Failing to discharge her duties and honour her obligations as so sworn in the House of Assembly, as an elected representative of the People of Tasmania.

Jury members, I now continue from part 1. I am going to provide you with further and better particulars to the charges I have just outlined, as they appear in the amended indictment. Please remember in part 1 of my opening address I cautioned you that anything I say to you about the evidence in my opening address is not to be taken as verified evidence (fact). I re-iterate, established evidence is only what witnesses say through the court witness box or, other evidence tendered through the court, for example photographs etc.

So, my commentary at this time of the trial is so that you will better understand ?
a) The relevant law that the prosecution allege the defendant has disregarded. The charges arise from the Minister O?BYRNE MHA?s wilful ignoring the plaintiff?s pleas for her assistance, and

b) The overall context of the case.

In this segment of the opening address, I intend to deal with three matters: –
1. The Sworn Oath, as Minister of Executive Council

2. The Sworn Oath, as Minister for Environment and Land Management

3. The Standing Rules and Orders of the House of Assembly

And, ladies and gentlemen, I remind you that you are free to ask his Honour any questions, if you are having difficulty with the legal, or other aspects of this trial as it progresses.

1. The Sworn Oath, as Minister of Executive Council

In relation to the first part of the first charge on the indictment, ?Failing to discharge her obligations as minister? ? I direct your attention to the allegation that defendant O?BYRNE has failed to discharge her obligations, and as she so avowed when sworn as a Minister of the Executive Government. This was sworn under the Promissory Oaths Act, 1869, Part II, Item 5, and it reads: –
“I, Michelle Anne O?BYRNE being chosen and admitted of His Majesty’s Executive Council of this State, do swear that I will, to the best of my judgment, at all times when thereto required, freely give my counsel and advice to the Governor or officer administering the Government of this State for the time being, for the good management of the public affairs of this State: that I will not directly or indirectly reveal such matters as shall be debated in Council and committed to my secrecy, but that I will in all things be a true and faithful councillor. So help me God.”

Ladies and gentlemen of the jury, the taking of that oath came about as Item 8, of the same part of the Promissory Oaths Act, which reads: –
8. Persons to take executive councillor’s oath

The executive councillor’s oath shall be taken by every person who is appointed a Member of the Executive Council of this State, so soon as may be after his acceptance of such appointment; and such oath shall be tendered by the Clerk of the Executive Council, and taken in the presence of the Governor or otherwise as the Governor directs.

Jury members, that is the overriding legislation to which we refer when alleging the defendant has failed to discharge her obligations as a minister. All Ministers of the Tasmanian Parliament are obligated under the executive councillor?s oath.

It is the People of Tasmania?s contention that the defendant has critically failed to discharge her obligations as a Minister so appointed under the Promissory Oaths Act 1869 insofar as she has failed to: –
a) Adequately inform the Governor-in Council of her inability to fulfil her Ministerial obligations as sworn, and

b) To remain faithful to her responsibilities arising from her sworn duty.

2. The Sworn Oath, as Minister for Environment and Land Management

Ladies and gentleman, I now wish to take that allegation a step further and explain to you the legislation that obliges the Defendant, Michelle Anne O?BYRNE, Minister for Environment and Land Management, to ensure all Tasmanians are protected from inappropriate interference with the air quality; that is in this instance her failure to ensure all Tasmanians are not subjected to environmental smoke and the resultant unsafe and injurious particle pollution.

Then the following part of the allegation is what I will refer to as the second element of item 1 in the indictment. I?ll just remind you of that: –

Failing to discharge her obligations as minister?

(I have dealt with that component of the charge in item 1 above as the first part of allegation 1)
and the second element carries on from those first seven words. It continues: –

? under the Act and with occasioning material and/or serious environmental harm to CLIVE STOTT and RICHARD BUTLER, both of the Tamar valley, by continuing to allow/promote, despite continued requests, various planned burns across Tasmania and pernicious smoke in and around the Tamar valley.

Here, the prosecution is referring to the Ministerial obligations that arise from the defendant?s duties under the Environmental Management and Pollution Control Act 1994 (N0. 44 of 1994). They are: –

1) S.5. Environmental harm

2) 109. Administration of the Act

3) Ss. 13A, 14, 15, 15A, 15B from Part 2 ? Administrative Division, 1 Administration

4) Part 2A ? Environmental Duties

5) Other, not yet specified, but may be required as the trial progresses.

Ladies and gentlemen of the jury I will now explain some of these here because it will help you understand the Ministerial obligations; the others will become exhibits as the trial progresses.

Document 2.1) to which I refer above is S. 5. Environmental harm. This plainly and without a doubt spells out the difference in interpretation of (a) serious environmental harm and (b) material environmental harm. For your benefit, this section of the Act reads:

(1) For the purposes of this Act, environmental harm is any adverse effect on the environment (of whatever degree or duration) and includes an environmental nuisance.

(2) For the purposes of this Act, the following provisions are to be applied in determining whether environmental harm is material environmental harm or serious environmental harm:

(a) environmental harm is to be treated as serious environmental harm if ?

(i) it involves an actual adverse effect on the health or safety of human beings that is of a high impact or on a wide scale; or

(ii) it involves an actual adverse effect on the environment that is of a high impact or on a wide scale; or

(iii) it results in actual loss or property damage of an amount, or amounts in aggregate, exceeding ten times the threshold amount;

(b) environmental harm is to be treated as material environmental harm if ?

(i) it consists of an environmental nuisance of a high impact or on a wide scale; or

(ii) it involves an actual adverse effect on the health or safety of human beings that is not negligible; or

(iii) it involves an actual adverse effect on the environment that is not negligible; or

(iv) it results in actual loss or property damage of an amount, or amounts in aggregate, exceeding the threshold amount.

(3) For the purposes of subsection (2), “loss” includes the reasonable costs and expenses that would be incurred in taking all reasonable and practicable measures to prevent or mitigate the environmental harm and to make good resulting environmental damage.

(4) For the purposes of subsection (2), “threshold amount” means $5 000, or if a greater amount is prescribed by regulation, that amount.

(5) For the purposes of this Act, environmental harm is caused by pollution ?

(a) whether the harm is a direct or indirect result of the pollution; and

(b) whether the harm results from the pollution alone or from the combined effects of the pollution and other factors.

(End of extract)

Ladies and gentlemen, document 2.2) to which I refer above is S.109. Administration of the Act. It reads: –

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 ?

(a) the administration of this Act is assigned to the Minister for Environment and Land Management; and

(b) the Department responsible to the Minister for Environment and Land Management in relation to the administration of this Act is the Department of Environment and Land Management.

The reference to section 4 of the Administrative Arrangements Act 1990 ? refers to the obligation for administration of the Management and Pollution Control Act 1994 (N0. 44 of 1994) until the Governor reassigns responsibility to another Minister or Department, that responsibility remains with the appointed Minister.

The reason I raise this for your attention ladies and gentlemen of the jury, is that I don?t want you to be confused with recent publicity about the closing down of the Department of Environment, Parks, Heritage and Arts (DEPHA) for which the defendant is the Minister in charge. Although DEPHA has gone, or is going as the case maybe, this rider is as it reads ?Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 ? the administration of this Act is assigned to the Minister for Environment and Land Management.

(End of extract)

Document 2.4) to which I refer above is Part 2A ? Environmental Duties. Ladies and gentlemen of the jury, this section reads as follows: –

23A. General environmental duty

(1) A person must take such steps as are practicable or reasonable to prevent or minimise environmental harm or environmental nuisance caused, or likely to be caused, by an activity conducted by that person.

(2) In determining whether a person has complied with the general environmental duty, regard must be had to all the circumstances of the conduct of the activity, including but not limited to ?

(a) the nature of the harm or nuisance or likely harm or nuisance; and

(b) the sensitivity of the environment into which a pollutant is discharged, emitted or deposited; and

(c) the current state of technical knowledge for the activity; and

(d) the likelihood and degree of success in preventing or minimising the harm or nuisance of each of the measures that might be taken; and

(e) the financial implications of taking each of those measures.

(3) Failure to comply with subsection (1) does not itself constitute an offence or give rise to a civil right or remedy, but if a person has failed to comply with that subsection an environment protection notice may be issued to that person.

(4) Where a person, in relation to an environmentally relevant activity, takes all measures specified, in a code of practice made and approved in accordance with the regulations, as meeting the requirements for compliance with the general environmental duty in respect of the activity, the person is taken to have complied with the general environmental duty in respect of the activity.

(End of extract)

Jury members, I acknowledge this introduction to the legal process may have become somewhat tedious for some of you. However, it is necessary for me to draw your attention to these documents, which will become exhibits. As the trial progresses these will become relevant to some witness evidence.

3. The Standing Rules and Orders of the House of Assembly

I now turn to item 2 of the indictment that alleges the defendant, Michelle O?BYRNE MHA has failed ?to discharge her duties and honour her obligations as so sworn in the House of Assembly, as an elected representative of the People of Tasmania.?

This is quite a separate issue to the allegations in item 1 relating to the defendant?s duties as a Minister of the Crown. This second charge alleges that, as well as failing in her duties as the Minister, the defendant has also critically failed to discharge her obligations as an elected representative of the people of Tasmania.

I submit, your Honour, that this being a People?s Court, the obligations of the elected representative to the people, are most relevant to the charges as alleged.

I refer in particular to items (c) and (d) in PART 2 of the Standing Orders and Rules, wherein it is stated: –

PROCEEDINGS ON THE MEETING OF A NEW PARLIAMENT

2. On the first day of the meeting of a new Parliament, the House having met at the time and place appointed –

(a) The Governor’s Proclamation shall be read by the Clerk of the House;

(b) The Writ of Election of each Member, with the Return endorsed thereon, shall be produced by the Clerk of the House, and laid upon the Table;

(c) Members shall then be sworn or make affirmation as prescribed by law;

(d) Members will then subscribe to the Code of Ethical Conduct contained in Standing Order No. 3;

(e) Members will then subscribe to the Code of Race Ethics contained in Standing Order No. 4;

(f) The House shall then proceed to the election of a Speaker;

(g) Prior to such election the Clerk shall act as Chair to the House.

(Highlighting (c) and (d) inserted by Prosecutor, Geraldine Allan)

Then, ladies and gentlemen of the jury, Standing Order No 3, as above-mentioned in (d), reads: –

3. CODE OF ETHICAL CONDUCT FOR MEMBERS OF THE HOUSE OF ASSEMBLY

PREAMBLE

As Members of the House of Assembly we recognise that our actions have a profound impact on the lives of all Tasmanian people. Fulfilling our obligations and discharging our duties responsibly requires a commitment to the highest ethical standards.

STATEMENT OF COMMITMENT

To the people of this State, we owe the responsible execution of our official duties, in order to promote human and environmental welfare.

To our constituents, we owe honesty, accessibility, accountability, courtesy and understanding.

To our colleagues in this Assembly, we owe loyalty to shared principles, respect for differences, and fairness in political dealings.

We believe that the fundamental objective of public office is to serve our fellow citizens with integrity in order to improve the economic and social conditions of all Tasmanian people.

We reject political corruption and will refuse to participate in unethical political practices which tend to undermine the democratic traditions of our State and its institutions.

(Highlighting inserted by Prosecutor, Geraldine Allan)

Your Honour, as I mentioned to the jury members earlier, all documents to which I have referred will be included in a list of exhibits at a later date in the trial.

That concludes Part 2 of the prosecution opening address. I note that time has got away from me your Honour. Part 3 of the prosecution case will detail the defendant?s alleged failures and how they relate to the documents to which I have referred today. That will take some time, so bearing in mind the limited time remaining today, I believe it wise for the prosecution to break at this point.

One final point if I may your Honour before the court adjourns today, is a matter of housekeeping ? I wish to notify you that due to family circumstances interstate, I shall be unavailable for this Court from 19th to 27th (inclusive) of June 2009. I seek your indulgence in granting this prosecutor leave of court attendance during that time.

If it please your Honour.

COMMENT: HERE

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