Jenolan Story

The most beautiful caves in the world filled with deception, lies and dishonesty

CHAPTER 6 - A DECEITFUL ACT

The Jenolan Story has explained the extraordinary circumstances in which the Jenolan Caves Reserve Trust was unable to effectively operate. This chapter explains how this situation occurred and was able to continue for such a long period of time. By 2002, the Trust’s problems were escalating, with little or no funding available from Treasury to remedy the problems.

In May 2003, the Trust closed the roadway into Jenolan Caves for a period of 8 days because of concernswith the high level of risk to life. [1] [2] [3] Road assessments stated there was an imminent risk of the road subsiding. [4] This had occurred previously on several occasions.[5] The Trust was unable to contact the Environment Minister to brief him on the situation.[6]

No Water: Angry Guests

Disruptions to the water supply at Jenolan Caves were common.[7] While the Trust had made applications to Treasury for the necessary capital funding,[8] it was not forthcoming. On 20 August 2003, after Treasury denied funds for the alternate access to the caves, via a gondola, the Trust Chair, Richard Mackay, resigned.[9]

On 3 December 2003, Cabinet agreed to replace the Trust Board with an Administrator.[10] However, to do so the government would need to amend the National Parks and Wildlife Act 1974 (the Act). This was known to Treasurer Michael Egan and to Environment Minister (and Attorney General) Debus. They were both instrumental in amending the Act to include the necessary provisions in 1997.[11]

Government Decides, ‘replace’ Trust Board

The following points explain how this plan is carried out:

  1. On 15 August 2003, Premier Bob Carr approved Minister Debus’ request to initiate an urgent review into the Jenolan Caves Reserve Trust and its relationship with government. [12] The Council on the Cost and Quality of Government (CCQG) would undertake this review.[13]
  2. Two weeks later on 3 September 2003, the Cabinet met and approved the review of the Trust on the condition that treasury “would not support any recommendations that involve public moneys being used to benefit the current lessee of the Jenolan Caves House”. [14] In light of the ongoing water issues at Jenolan Caves,[15] this meant that the water problems would not be solved while the hotel was under the control of the current lessee.
  3. On 31 October 2003 the Special Review presented its findings to the budget committee.[16] The review stated that with its current level of funding the Trust was not able to meet its conservation obligations.[17] The review recommended five structural options for governing the Trust lands, none of which involved the appointment of an Administrator. [18]  
  4. On the same day, the CCQG recommended the appointment of an administrator to replace the Trust board by 31 January 2004.[19] The recommendation did not state how this should be done or whether there was sufficient time to amend the legislation by that date. The CCQG also recommended purchasing the lease to the hotel for $7.5 million. [20]
  5. In November 2003, Professor Percy Allan reinforced the CCQG’s recommendations. [21] He also recommended the appointment and “exiting the lease with a negotiated buy-out”.[22] A memorandum signed by government members and staff approved the recommendation be submitted to the budget committee on 21 November 2003. [23] However, this memorandum gave no additional information on provisions under the Act that would allow for the replacement of the Board. 
  6. On 2 December 2003, Premier Bob Carr signed recommendations that the government would replace the board.[24] When making the decision he had access to the Special Review, which did not recommend the board be replaced.[25] 
  7. On 3 December 2003, Cabinet approved recommendations to ‘replace’ the Trust Board.[26] Item 9.1 of the Minutes, “Approved the appointment of an Administrator…to replace Trust Board on or before 31 January 2004”.[27] It made no mention of how this could be achieved before the deadline. Regardless, Cabinet approved funding of $0.5M over two years for this appointment. [28]

Minister Meets Trust Board

8. On 6 December 2003, the Minister met the Trust Board.[29] He said: “an Administrator, will be appointed (as provided for under the National Parks and Wildlife Act)”. [30] With no members of the Trust Board having sufficient rank to question the Attorney General the board members agreed not to seek reappointment.

The Minister did not tell the board at the meeting which section of the Act he would rely on to appoint the administrator. Neither the Minister’s notes prepared prior to the meeting[31], nor the transcript of the meeting[32] made reference to a section of the Act. Minutes compiled after the meeting state: “the Board recommended to the Minister that at the expiry of the current board’s term on 31 January 2004, an Administrator be appointed pursuant to Section 58ZE of the National Parks and Wildlife Act”. [33] This is the only reference to section 58ZE.

9. On 8 December 2003, two documents were released to the public: a news release by the Minister[34] and a memo by Andrew Fletcher to “All Trust Staff”[35]. Neither made reference to which section of the Act twould be used to appoint the Administrator. On the same day, the Trust General Manger Andrew Fletcher recommended to the Minister, on behalf of the Board, that an Administrator be appointed “pursuant to Section 58ZE”.[36] Again, section 58ZE has not been made public.

10. On 20 January 2004, The Minister made a public notice stating an Administrator would be appointed under section 58ZE of the Act for a period of 6 months “unless extended pursuant to the Act”.[37] This is the first public statement the Minister made that stated he would rely on section 58ZE to appoint the administrator. There were also no provisions under the Act that allowed for an extension of the Administrator’s term beyond six months.[38]

Trust Operating Illegally

11. On 12 December 2004, the Shadow Minister for Environment issued a press release. He said “there is a strong belief that the way the government is running the caves is illegal”.[39] He also said: “the Minister can only appoint an administrator if he sacks the Trust”. He said the appointment of an Administrator was only a “stop-gap measure”.[40] It was understood at the time that the Shadow Minister’s statement represented Coalition views in 2004.


“The government tried to beat this deadline by introducing legislation in June [2004] … but the Bill never got through the Legislative Council, and it is now 10 months since Mr Griffin stepped in as administrator – four months beyond the deadline imposed by the Act.” 41]
 The Coalition understood that section 58ZE would only be a stop-gap measure, not a permanent appointment, as stated by Treasurer Egan on 6 December 1996.[42]

Attempting to Change the Act

12. The amendments to the Act were again before parliament on 12 October 2005. The Minister said the appointment was examined by the Crown Solicitor and was valid on an ongoing basis. [43] This was contradicted by the Coalition's senior counsel advice by Robertson.[44]


The Robertson advice states that: “the only circumstances in which an administrator can be appointed to the Trust is where the Minister has removed all members of the Trust Board from office”.[45] Therefore, the Minster “had no power to renew the appointment”.[46] This advice has never been refuted.

To Sum Up …

The government has been willing to spend an extraordinary amount of public money to mislead the public, to conceal a serious indictable offence. The next few chapters will present the view that the bank, whilst not the mastermind of this arrangement, also engaged in problematic conduct.

A number of submissions presented to the Parliament by the Australian Small Business Council and others during the past 4 years have raised questions as to whether the major bank’s conduct during this period was any less dishonest than that of the government.  

JMA Parties would appreciate feedback on this Chapter, including information that should be corrected

Please contact us by This email address is being protected from spambots. You need JavaScript enabled to view it.

Bibliography


 

[1] JCRT, Special Announcement: Road Closure – Jenolan Caves, 23 May 2003CRT, Special Announcement: Road Closure – Jenolan Caves, 23 May 2003.

[2] Minutes of JCRT board meeting of the JCRT held on Thursday 22 May 2003.

[3] 2002 List Main Road 253 – Stability.

[4] Minutes of JCRT board meeting of the JCRT held on Thursday 22 May 2003.

[5] Council on the Cost and Quality of Government, CCQG Special Review on the Jenolan Caves Reserve Trust, page 32.

[6] Minutes of JCRT board meeting of the JCRT held on Thursday 22 May 2003.  

[7] Lists entitled: Unfiltered water, Trust not providing 24/7 water supply, and public safety concerns.

[8] Letter to Archer Field from Richard McKay, Trust Chair, dated 8 August 2003.

[9] Minutes of JCRT board meeting of the JCRT held on 20 August 2003, at Billabong Tea House, Trunkey Creek.

[10]DPC14/05302: Cabinet Standing Committee on the Budget minutes of the Meeting held on Wednesday 2 December 2003, was attended by Premier Carr, Environment Minister Debus, Minister for Road Scully and Minister for Police Watkins, Tab A7.

[11] National Parks and Wildlife Amendment (Abercrombie, Jenolan and Wombeyan Karst Conservation Reserves) Bill, Second Reading, 5 December 1996, page7040.

[12] Letter from Bob Carr to Debus, 15 August 2003.

[13] Ibid.

[14]Cabinet Minute by the Cabinet Standing Committee on the Budget, Review of the Jenolan Caves Trust to be undertaken by the Council on the Cost and Quality of Government, 3 September 2003, obtained through FOI-DPC14/05302 (A1).

[15] Lists entitled: Unfiltered water, Trust not providing 24/7 water supply, and public safety concerns.

[16] Council on the Cost and Quality of Government, CCQG Special Review of Jenolan Caves Reserve Trust, 31 October 2003 (document accessed 12 February 2015).

[17] Council on the Cost and Quality of Government, CCQG Special Review of Jenolan Caves Reserve Trust, 31 October 2003 (document accessed 12 February 2015), page 28.

[18] Council on the Cost and Quality of Government, CCQG Special Review of Jenolan Caves Reserve Trust, 31 October 2003 (document accessed 12 February 2015), page 41.

[19]DPC14/05302 A14,Tab A, JCRT Review: CCQG Recommendations 31 October 2003.

[20] Ibid.

[21] DPC14/05302 A14 Special Review: JCRT by Percy Allan on or about 19 November 2003.

[22] Ibid, p 45.

[23] A12: Performance Measurement and Review Division, Special Review – JCRT – Submission to Budget Committee of Cabinet (document accessed 12 February 2015 through FOI-DPC14/05302).

[24] Council on the Cost and Quality of Government, CCQG Special Review on the Jenolan Caves Reserve Trust, 2 December 2003, obtained through FOI-DPC14/05302 on 12 February 2015.DPC14/05302 (A13).

[25] Council on the Cost and Quality of Government, CCQG Special Review of Jenolan Caves Reserve Trust, 31 October 2003 (document accessed 12 February 2015).

[26] Attending the meeting was Premier Carr, Treasurer Egan and Attorney General and Environment Minister Debus.

[27]DPC14/05302: Cabinet Standing Committee on the Budget minutes of the Meeting held on Wednesday 2 December 2003, was attended by Premier Carr, Environment Minister Debus, Minister for Road Scully and Minister for Police Watkins, Tab A7.

[28] DPC14/05302: Cabinet Standing Committee on the Budget: CCQG of Government-Special Review of JCRT A9.

[29] Draft Minutes of the Board Meeting of the JCRT held on 6 December 2003, at Wombeyan Caves.

[30] Ibid.

[31] JCRT Board Meeting 1.30pm on 6 December 2003.

[32] Briefing to Board-Minister Debus-6 December 2003.

[33] Draft Minutes of the Board Meeting of the JCRT held on 6 December 2003, at Wombeyan Caves.

[34] “New Lease of Life for Caves,” NSW Attorney General, Minister for the Environment, News Release, 8 December 2003.

[35] Memo, To: All Trust Staff from Andrew Fletcher dated 8 Dec 2003.

[36] Letter from Andrew Fletcher to Minister Debus, 8 December 2003.

[37] National Parks and Wildlife Act 1974 Notice, 20 January 2004.

[38] National Parks and Wildlife Act 1972, section 58ZE.

[39] Media Release by Michael Richardson MP, 12 December 2004.

[40] Ibid.

[41] Ibid.

[42] National Parks and Wildlife Amendment (Abercrombie, Jenolan and Wombeyan Karst Conservation Reserves) Bill, Second Reading, 5 December 1996.

[43]Hansard, 12 October 2005, NSW Parliament, National Parks And Wildlife Amendment (Jenolan Caves Reserves) Bill Hansard.

[44] Jenolan Caves Reserve Trust- Appointment of Administrator, Memorandum of Advice, T.F. Robertson SC, Fredrick Jordan Chambers, 7 September 2003.

[45] Ibid.

[46] Ibid.

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