Legislative Council, Wednesday 4 June 2025
Ms FORREST (Murchison) – Mr President, it is a little bit disappointing that we are dealing with this today. It was something that we were not expecting to deal with, at least until tomorrow. I am aware of all the things that are happening in the other place. I think you would have to be blind Freddy not to be.
This is really serious legislation and we have had some legitimate and genuine concerns raised with it. I have not put anything together, except my thoughts in my head, so this may be a bit disjointed. I know that minister Jaensch has offered me a briefing.
He wanted to get in my head on Friday and I told him to go away, because I was trying to read the Budget papers – I do read the Budget papers from cover to cover – and prepare for Estimates, who knows what is happening with that. I also had a particularly sick family member, trying to deal with all that and he was trying to get in my head and tell me that. I did put him off and had a briefing on Monday. I appreciate the effort the minister is going to, to try to inform us of why he wants this piece of legislation through and why he wants it through now. Generally, during the Budget session, we deal with legislations related to the Budget. You can argue this is because there is $151 million in the Budget for this facility and the new model of care.
I think I can safely say, everyone in this chamber wants to see Ashley closed, but I will let everyone speak for themselves on that. I certainly know it is a horror show, it has been a horror show for a very long time. It has harmed so many children and young people. Young people and children who often find themselves there are not even convicted of a crime. Children and young people who often come from very disadvantaged backgrounds, who have been let down by our systems, and have not received the support they needed to avoid ending up in Ashley. Many of them are from my electorate.
We know that it was all laid bare in the commission of inquiry. Well, there are probably horror stories which we have not heard. Rest assured that what we did hear from those who have been harmed in that place is probably just the tip of the iceberg. Absolutely, it needs to close. A commitment was made many years ago that it would close and here we are, still moving along at a pace that could hardly be described as speedy. We have landed with a bill that wants us to take an alternate approach to approving a new facility. It is concerning in that it removes the usual rule of law application, to the proponent, the government. We have a few pieces of legislation along these lines, it does not make them right. Passing one does not mean that we should pass all of them.
I have not had time to fully digest all the information, but I do want to read from the briefing paper that we received from Anja Hilkemeijer and Dr Cleo Hansen-Lohrey, who provided a couple of briefing notes to us, in relation to this bill. The one that they referred to today I will read from, because it is really important we understand, if we agree to this legislation, what we are agreeing to. They say that:
We present feedback to the minister on this bill because we are concerned about the bill’s impact on the rule of law requirement that the law applies equally to all, including the government. The rule of law requirement that legislation must be clearly expressed; and constitutional administrative law principles regarding the importance of scrutiny of government action by parliament and independent tribunals.
They go on to talk about the first concern regarding the planning authority’s discretion under the Land Use Planning and Approvals Act 1993 (LUPAA). Section 10 of the bill – this is the bill we are talking about now – states that the application of the youth justice facility is an application for a discretionary permit under section 57 of the LUPAA. Now, as I understand it, a youth justice facility or such a facility is only ever discretionary, and it is a discretionary on rural land. That is the situation. It is a discretionary use and that would be treated through the planning process – and I have never been in a planning authority; there are many more people in this Chamber who would be far more experienced in that than me and I will be interested in their views.
With a discretionary use, there is a process to go through. The application must go out for public comment; they have to meet some criteria to create acceptable solutions for the issues that may or may not be. It is open to appeal, whereas a permitted use is not open to appeal because it is permitted under the planning scheme. I have been here long enough to know that we have made a number of changes to planning law over the years to try and expedite permitted use developments like a house that a person wants to build, on a block of land that is zoned residential, they are not going to offend setbacks, they are not going to offend height restrictions, they are not going to offend anything. It fits within the planning scheme; yes, they get approval.
That is what that process is for, but where you have got something else that does offend some of those things, then it is a discretionary use, and it is up to the council and the planning authority, through that process, to make a determination about whether or not that should succeed. Now, I take on board the minister’s comments that should this application, rather than being a youth justice facility, be an abattoir or a fish food factory or a fish processing plant or a mine, that it is a permitted use. It could not be appealed on the fact that it was a mine or a fish food factory or an abattoir, but there are still rights of appeal in relation to things that come from that.
In the case of an abattoir, those who have driven past Greenham at Smithton will know there is quite the smell, depending on which way the wind is blowing as to how offensive you might find that. I do not particularly like bacon, and when you drive past and the wind is blowing that way, that is what you smell, and probably other things as well I do not want to bear to think about. There are still processes around meeting those requirements. We have got other laws that govern some of that. When you turn off any capacity to appeal other than through the Supreme Court – when we have set up TASCAT to replace the RMPAT to provide that avenue – unless there is absolute evidence that TASCAT is not efficient, not capable of dealing with appeals in a timely manner, then I am not sure why we would do that.
I did ask in the briefing about TASCAT. Obviously, it is not something that is at the minister’s fingertips; it is not his portfolio for a start, but I think when you are asking us to do this, you need to explain why it is such a problem. I asked to hear from the Southern Midlands mayor and general manager and their – I cannot think of the actual title of the other gentleman that was on the call, but in their planning space, obviously. I wanted to hear from them what they thought about this, partly the removal of the appeal rights, but also the switching of this process from a discretionary permit approach to a permitted permit approach, but with a discretionary aspect of public consultation, even though that can be ignored because you have to approve it anyway, with conditions probably, or meet some performance standard.
They made an interesting observation that they were concerned about the removal of appeal rights. They thought maybe there was an option of rather than removing appeal rights, putting in a provision to ensure that any appeal was prioritised and expedited by TASCAT. I do not know how that would necessarily work, and I do not know what barriers there might be to progressing a matter through TASCAT as a priority, but I believe everyone agrees that we want a new youth justice facility built, and a new model of care, because we have failed the young people who fall foul of our law, or they end up in this facility through the services we provide to date, and the commission of inquiry made that really clear.
I do not think there is anyone who disagrees with that, but that does not mean you should trash your planning processes and should trash the rights of fellow Tasmanians to achieve it. I absolutely get the need to deliver this as quickly and as efficiently and as soon as possible. For the minister to sit across the table in the briefing today – it was good of him to come to the briefing, but to say that what he wants to be able to do is give absolute deadset dates as to when certain things will happen – well, I want a deadset date when you are going to deliver the DA to the council for their assessment. That is a good deadset date I would like to know.
I never expected that we would be here changing the process because he wants to better say with deadset certainty that this is going to be open on X day in X year. Even when you build a house that is permitted use things can go a bit astray. Supplies might be caught up on the wharf somewhere, your windows might not arrive and so you have delays. That is what it is.
I am not sure, and the other members will speak for themselves, I believe he was a little bit disingenuous when he said that there are members and media who have been demanding dates. As a member of the commission of inquiry committee, sitting round that table, I know that no one has actually asked for a specific date. What we have asked for, and particularly the member for Nelson has been very targeted with her questioning on this – and this is all on the public records, you can go and look at it on our Hansard – she was asking about where we are in the process, not the date on which it would be opened.
Let us be honest with what the actual pressure has been. The pressure is to close Ashley, but to do so we need a new facility with new models of care that not only provide for the children who will end up in that facility, but for the other children who do not need to be in that facility but need to be provided for in an alternate model of care and another safe environment, because what we should be focusing on here is having very few children in such a facility, no matter how nice and therapeutic it is.
What we need to be doing is addressing the underlying, fundamental reasons that they end up there in the first place, when so much of that could be prevented: dealing with intergenerational poverty; dealing with intergenerational disadvantage; dealing with poor educational outcomes; dealing with homelessness; and dealing with untreated, unrecognised and unsupported mental health issues. These are the reasons a lot of these young people end up there. Lack of support for families who are struggling with parenting; lack of support for pregnant women who end up with harmed babies because of substance abuse because they do not know any other way; these are the reasons that we have more children than we should ending up in this system.
To go back to this letter from the two legal experts, if you like, they said that section 10(1)(b) of the bill then provides that the application must be approved by the planning authority if the application is an application that is able to be approved. Well, if it is a permitted use, it is obviously able to be approved; that is the way it has being treated, but they were concerned about the wording here – this was an amendment put in the other place to try it make it clear because the Southern Midlands Council had raised concerns that the bill, as it had been drafted, could require them to approve a development that did not meet the planning scheme. That would be unconscionable, obviously, so this amendment was put in to address that. I am no expert to say, ‘yes, it does’ or ‘no, it does not’, but they go on to say:
The meaning of the phrase is ‘an application that is able to be approved under LUPAA’ is unclear. We have had many discussions among ourselves on what that phrase means, but we are still struggling to understand the precise operation of the phrase. That is not a good thing. (TBC)
Now, these are people who are legal experts and they are not sure about what this clause really means. They go on to say:
While formally the Planning Authority will still exercise its discretion under LUPAA, in terms of deciding whether to approve or reject the application for the youth detention facility, as a matter of substance, the Planning Authority’s capacity to exercise this discretion is limited because parliament, through Section 10(1)(b) directs the Planning Authority as to how to exercise his discretion, namely in favour of approval. (TBC)
You do not have any choice; you have to approve it. We heard from the Southern Midlands Council that it is unlikely that development, as what they know of it, would fall foul of the planning scheme, but that is not the point. Legislation should be clear, it should be unambiguous. They go on:
Therefore, while as a matter of form, it is correct to say that this bill, parliament, is not granting planning approval (TBC)
And that is true, unlike some other legislation that is sitting around somewhere downstairs, I believe, as a distraction to the horror show that is the Budget – that was my comment, not what these people said – I will go back to what they said:
As a matter of substance, parliament is directing the planning authority to grant that approval, except if it would be clearly prohibited under the planning scheme to do so. Normally, an application for a discretionary permit may be refused on one or two possible grounds.
(1) If the application cleared does not comply with the planning scheme, the planning authority must refuse it. The amended section 10 preserves this ground.
(2) Nevertheless, even if there is not a clear breach of the planning scheme, the planning authority may exercise its discretion to refuse to issue a permit if it determines based on the on a consideration of all of the relevant information, including community representations, that the application is not sufficiently consistent with planning stands or criteria, or the overarching objective of the Tasmanian Resources Management Planning System.
It is this second possible basis for refusing to grant a permit that is removed by this bill. In our view, the practical effect of section 10(1B) is to modify the statute statutory discretion of the planning authority under LUPAA. While parliament has the authority to alter LUPAA to create a hybrid permitted and discretionary application process for this specific facility, we are concerned that doing so would undermine the rule of law principle that the law applies equally to all and the government is not above the law. This risks weakening public confidence in how Tasmania is governed.
Furthermore, it would also create an unusual arrangement which carries the risk of increasing confusion in the planning decision-making pathway. Therefore, in our view, the best approach would be to delete Section 10(1B) and allow the existing process for discretionary permit applications under LUPAA to continue to apply both in form and in substance. If Section 10(1B) is to be retained, it should at the very least be amended to make parliament’s intention absolutely clear. (TBC)
So, that is a concern. The member for Elwick will no doubt speak about this. I am not familiar with all the language as well as you would be, member for Elwick, but the performance criteria that would be required to be met that would give rise to perhaps an approval or rejection, but being as you cannot reject, you cannot. To me, who has not worked through the provisions of LUPAA in that way, I find this extremely confusing. They go on.
Turning now to the question of removal of oversight by the Public Works Committee, I acknowledge the member for Mersey’s email looking for an amendment to remove this provision that removes the Public Works Committee oversight, he will no doubt speak more to that, but they also raise concern about clause 12 of the bill removing oversight by the Public Works Committee over expenditure on the construction facility.
In a decision in September last year between the Attorney-General of Tasmania and Mr Casimaty, the High Court emphasised the vital role of this Parliament’s Public Works Committee in strengthening political accountability of the executive government. In this context, the court referred to parliament’s higher duties to scrutinise executive action. In addition to this important scrutiny function, the work of the Public Works Committee improves public confidence in the merits and execution of government building projects.
Therefore, while the need to close the Ashley Detention Youth Detention Centre is widely acknowledged, in our view, this does not mean that the way in which the new facility is built should proceed without the usual parliamentary oversight. While parliament has the power to remove oversight by the Public Works Committee, in our view, reducing executive accountability is undesirable and therefore section 12 of the Bill should be deleted. (TBC)
Now the member for Mersey will speak more to his intention regarding that, but the Public Works Committee is the front-end scrutiny. Yes, part of their role, and I will just go to the provision in the act because I think it is important, because the minister did refer to it too, this is section 15 of the Public Works Committee Act 1914 and under the functions of the committee under subsection 2, it says:
In considering and reporting on any work, the committee should have regard to –
(a) the stated purpose thereof;
(b) the necessity or advisability of carrying it out; (TBC)
Then the next part of that is irrelevant because it says:
…where the work purports to be of a reproductive or revenue producing character, the amount of revenue that may reasonably be expected to produce. (TBC)
Well, obviously that is not relevant in a case like this. And
(c) the present and prospective public value of the work –
and generally the Committee shall in all cases take such measures and procure such information as may enable them to inform or satisfy Parliament as to the expense of carrying out this work. (TBC)
We have this committee for a reason and one of the reasons the Public Accounts Committee has been so busy of late is because so many things are going pear-shaped in this state. Our job is to do the ex-post assessment, for the money that has been spent, or that we have pulled in a couple that have been approved by the Public Works Committee but have not been completed, and that was around the COVID period because we were concerned about massive cost blowouts and that was related to the Sorell Emergency Services hub and the Sorell School, but generally, we are looking at after the event or expenditure in progress, like the Devonport Berth for example, and how much more that is going to cost us.
These committees are standing committees, they are a function of this parliament, they do not have to be re-established every parliament, they are statutory committees that have been agreed by this parliament to do the work. Now there may be a very good reason for taking it out, but if the legislation was to be approved with the amendment from the member for Mersey, still removing the appeal right, still changing the LUPAA application if you like, then the least we can do is provide a public process through the Public Works Committee to at least enable parliamentary scrutiny and a report to parliament.
The chair of the committee, the member for McIntyre can speak for herself, which I am sure she will, but I know that the Public Works Committee have busy times for a period, but I think the members of that committee would all understand that this is a priority. We have agreed with the commission of inquiry’s recommendations. We all want to see this thing progressed. I would be staggered to think that members of that committee would not make themselves available as soon as possible once the information was provided to them, and the member for McIntyre can probably inform me if I am wrong on this, but I would have thought the information provided to the Public Works Committee is information they are providing to the local council and to the other relevant stakeholders or regulators or authorities that will be getting this information through the process anyway. Now, if I am wrong about that – I have never been on that committee – I am happy to be corrected, but for the minister to say there is so much work that is required that will be in addition to what they are trying to do to get this delivered, I find it a little bit unlikely. But, if I am wrong, I am happy to be corrected and I am sure the acting leader will correct me if I am wrong on that too.
The next point they raise is turning now to section 10(1)(c), which removes the third-party access to TASCAT, and I have referred to this a little bit, but I will read their comments here:
TASCAT review was an important part of our system of checks and balances which ensure appropriate scrutiny of executive decision-making. Public confidence in planning decisions is strengthened by enabling persons who are directly impacted by a project, as well as interested community groups, to seek review of planning decisions by an independent tribunal.
Potential local sensitivity around the building of a youth detention facility strengthens rather than weakens the case for independent oversight. In any event, removing TASCAT review will not remove strong community concerns. These concerns may relate to a whole range of issues that are important to constituents and merits review provides a formal and independent mechanism for considering these. (TBC)
Now, obviously the appeals are limited. It is not just a free-for-all that we are talking about. There are constraints around that. They go on to say:
There is also a risk that removing third-party appeal may redirect those concerned groups into much longer and more costly judicial review proceedings through the courts, causing much longer delays than a merit review process by TASCAT. Of course, parliament cannot exclude judicial review of the lawfulness of administrative decisions, including planning decisions. The High Court has told us that removing judicial review will allow the executive to determine the limits of its own power. That, in the High Court’s words, ‘will create islands of power immune from supervision and restraint. Therefore, it is our view that section 10(1)(c) should be deleted. (TBC)
I did speak a bit about this. I need some evidence that TASCAT are a problem, in that it would take far too long before we are taking away the rights of people to appeal. Now, I know some of the concerns raised – and I have talked to members of the community in the vicinity of the proposal here. They are concerned about the fact that a youth detention facility near a garden club and a shooting club and a clay pigeon shooting arrangement may be not in the best interest of the young people. I understand that. There is also a medicinal cannabis operation just over the main highway there, but which apparently does emit quite an odour at times, but that business is looking at composting rather than burning their residual waste. In any event, some of those things may be able to be mitigated, but the planning scheme looks at the impact of the new development, which would be the youth detention facility on the neighbours, not the other way round.
I am not sure exactly how those matters would see light of day in a process of review. I understand the concerns of some of the neighbours around those things and whether or not they can be mitigated, because the facility itself will not be making – well, hopefully not – gunshots on-site and they hopefully will not be burning lots of cannabis either. It is the neighbouring properties that have these other pre-existing uses, if you like. It is a rural area, so you expect sometimes when townies move to the country, they do not like the cows mooing either and complain about that.
The fourth point they make is:
Finally, we turn to the question whether the minister should be empowered to change key features of the facility. (TBC)
This is something that did concern me a little bit too. In clause 6(1) of the bill, parliament declares the building of a youth facility so long as it conforms to a maximum floor area, a maximum size for a wastewater facility and a minimum 20-metre setback from the boundary. However, clause 6(2) allows the minister on one or more occasions to change these three important features of the building project. An increase in the gross floor area in particular could lead to the construction of a much bigger facility than is presently contemplated.
Clause 6(2) fails to provide an end point to the exercise of this ministerial power. We are concerned about two things: first, that the capacity for parliamentary oversight and disallowance of possible future ministerial orders is, in practice, limited; particularly given that there can be a considerable gap between the gazetting of the ministerial notice and its tabling in both Houses. We note that in this regard, no justification has been provided for removing the application to the Subordinate Legislation Act 1992.
The key purpose of the Subordinate Legislation Act is to ensure that any impact on the community from subordinate legislation is clearly justified, including through the requirement for a regulatory impact statement. That is not always the case. Sometimes you can get an exemption for that. Where the Treasury determined that there is an impact, there has to be a regulatory impact assessment at that point. More often than not, you get exemptions from that, as the current chair would understand.
Ms Rattray – Through you, Mr President, the former Chair knows it backwards.
Ms FORREST – Yes that is right. Compliance with the Subordinate Legislation Act’s guidelines ensure that the economic, social, environmental costs and benefits of subordinate legislation are made transparent and carefully scrutinised. Under this bill, those important oversight processes are removed. Whilst it is a disallowable instrument, it does not go through another standing committee of this parliament, whose job is to scrutinise subordinate instruments. There are some things that the committee does not scrutinise, and not all orders are scrutinised.
Ms Rattray – National consistent legislation, you do not.
Ms FORREST – Yes. All regulations are, obviously. Every time we take something away from a form of parliamentary scrutiny – we had another disallowance motion not so long ago; I asked the chair of the committee, ‘Has the Subordinate Legislation Committee considered this regulation yet, because I rely on them to do that work?’ If they had done so and were happy with it, then that gives a different perspective, perhaps, than if they had not even had a chance to look at it and a disallowance motion is put on by another member – who has every right to do that, it is not a criticism for doing that. It is just that that interrupts that particular process. They go on to say:
Secondly, clear decision-making pathways are important in any planning process. It is our view that Section 6(2) should, at a minimum, be amended to make it clear that the minister may not change these key features of the facility after the planning authority has been approved and perhaps attached conditions to that development.
I know what the counter argument to that will be, but you never know until you get into a bill what might happen. You might need to adjust something; you might find that there is a bog in that area, and you cannot actually put that thing there, and so you need to amend the floor plan or something like that during the process. It is just this carte blanche approach that you can do almost anything you need to make it be what you want, and then not have further scrutiny or approval by the council, the authority that approved the permit in the first place, and necessarily through the parliament. I am concerned about a number of those things.
I will listen to other members’ contributions, particularly those who have had much more experience than me. Everyone has had more experience than me, pretty much, who has been in local government, but to hear from those who know how it works in progress – do you hold concerns about that, or am I just being overly pessimistic here?
I do wonder if there is that middle course, as suggested by the Mayor of the Southern Midlands, Edwin Batt, when he talked about perhaps having a more expedited process through TASCAT for appeals rather than removing the right altogether. I know the government, and the minister particularly, do not want delays to this. None of us do, but we have proper processes and every time we trash them, like the Stony Rise development, for the benefit of a developer, a donor to members of the Liberal Party, we undermine the very reason we are here.
When we agree to a process in this place, if we do not like the process anymore, we change the process for everyone. Once you start cherrypicking – and we are seeing so much of this at the moment, and that is one of the reasons why a there is a trust deficit and a lack of confidence in the government, as we are seeing play out right now in another place, but for me, I am yet to be convinced that the normal planning process should not prevail in this.
Perhaps there is a need for some mechanism to expedite any appeal through TASCAT, knowing that there are apparently members of the community who are getting their legal advice about what they need to do to appeal. That is their right. They may not even have standing. They may not have a valid appeal to put, but surely if someone does feel aggrieved, they do have standing particularly. To have those rights taken away is deeply concerning, unless there is a really good justification for it.
If the acting leader in her reply or other members can convince me that this is a really good idea, then I am happy to reconsider my very deep concern at this point. I have not made a final decision on this bill. I was hoping to have a bit more time to fully consider the matter, and maybe we will overnight, I do not know what time we intend to sit tonight, but it is ridiculous sitting late when we have got a whole day tomorrow.
I have done my best to raise the matters of concern to me. There are a number of areas within the bill that I think do warrant further consideration. That may take some time in the committee stage, obviously. I know the member for Mersey is looking at one amendment, which I think is eminently sensible, but I think there are others that should be contemplated if this bill is to proceed in some form.