Land clearing Code declared invalid by Court – then immediately remade

From EDO newsletter..

Last Friday, the NSW Land & Environment Court made an order that “on and from 24 August 2017, the Land Management (Native Vegetation) Code 2017 has been invalid and of no effect.”

This extraordinary order stemmed from a legal error made by the NSW Minister for Primary Industries in the making of the Code. The Minister had a legal obligation to obtain the concurrence of the Environment Minister before making the Code, which he failed to do.

Following the Court order, our CEO David Morris stated, “In conceding that they failed to follow due process, the Government gives the strong impression of making laws on the run. This is not simply a matter of incorrect paperwork. Ecologically sustainable development is not just another box to tick – the Environment Minister has a legal responsibility to protect biodiversity in this state.”

Later the same day, the Minister for Primary Industries remade the Code without amendment.

Although not unexpected, it was very disappointing, for both us and our client – the Nature Conservation Council – that this was done without addressing any of the serious concerns raised in the legal challenge.

In addition to the argument that the Primary Industries Minister failed to obtain the Environment Minister’s concurrence, we argued that, in making the Code, the Ministers did not take into account the legal principles of ecologically sustainable development, as they are legally required to do.

Because the Government conceded the first ground, it does not now have to answer the second ground of the challenge in Court.

Challenging the failures of Government Ministers to adhere to the laws made by Parliament is an important part of defending democratic principles and the rule of law. We are now scrutinising the new Code and will keep you informed of developments.

Read about the case here

Sydney Morning Herald article