The federal environment department allowed the National Farmers’ Federation (NFF) to attend a meeting about clearing of native grasslands in what its own officials warned could be a breach of commonwealth prosecutions policy.
The warnings are contained in documents, seen by Guardian Australia, which were prepared ahead of a 5 April 2019 meeting to discuss an allegation that Jam Land, a company part owned by the then energy minister Angus Taylor and his brother Richard, had illegally cleared 28.5 hectares (70.4 acres) of critically endangered grasslands in the New South Wales Monaro region.
The meeting was attended by the department’s then deputy secretary Dean Knudson, its chief compliance officer, Monica Collins, the Jam Land director, Richard Taylor, the NFF’s chief executive, Tony Mahar, and another official.
“The close engagement of the National Farmers’ Federation in any type of alternate dispute resolution with Jam Land Pty Ltd and its directors and the department is unusual,” a two-page brief written before the meeting states.
“It is not a request that would normally be acceptable to the department and may create a precedent or perception about the inappropriate influence of third parties on our formal investigatory processes.”
The Jam Land case has been controversial because Angus Taylor sought meetings in 2017 with senior environment officials and the office of the then environment minister, Josh Frydenberg, about the laws that protected the grasslands while the investigation was under way.
Angus Taylor is a shareholder in Jam Land via his family company Gufee. He has repeatedly stated he “did not make any representations to federal or state authorities” in relation to the investigation into Jam Land.
In 2020, three-and-a-half years after Jam Land sprayed herbicide on the property, the department concluded the grasslands had been removed illegally and ordered Jam Land restore 103 hectares (254 acres) on another part of the property.
Jam Land appealed the remediation decision in the federal court in a case that was financially backed by the Australian Farmers’ Fighting Fund, a fund administered by the NFF.
The court dismissed the appeal in September this year but Jam Land is now pursuing a separate federal court challenge.
The 2019 documents shed new light on the sensitivity of the case within the department.
The two-page meeting brief states the department wanted “a shared understanding of Mr Richard Taylor’s concerns with the compliance case and his willingness to engage with the department to resolve the case”.
Jam Land and the NFF wanted “a further discounted approach to the compliance action” and an agreed pathway to resolving the compliance matter, the brief says.
By this time, the Jam Land investigation had been under way for more than two years and, according to the meeting brief, the department’s last correspondence with the company was 18 months earlier .
In a longer brief prepared before the meeting, a senior investigator said involving a lobby group in a meeting about an active investigation posed risks to the department’s regulatory activities.
The NFF’s involvement may be “inconsistent” with the prosecutions policy of the commonwealth, “in particular whether or not the decision to prosecute has, will or is likely to have been influenced by any advantage or disadvantage to the government”, they wrote.
It may also be inconsistent with the Legal Services Directions 2017, they said.
“There is a significant risk that information disclosed in the alternate dispute resolution process may be conveyed by the National Farmers’ Federation to other third parties, or the broader community more generally, undermining and compromising the probity of the process,” they wrote.
The meeting with the NFF went ahead despite the warnings. There is no suggestion that Richard Taylor did anything wrong by attending the meeting.
Kirsty Ruddock, a managing lawyer with the Environmental Defenders Office, who previously worked as an investigator for the NSW environment department, said it was not unusual for an investigating agency to meet stakeholders generally and talk about its policies but that to talk about individual investigations was “highly unusual”.
“It’s certainly what I would describe as unorthodox and not what I would call best practice from a regulator to be engaging with what is essentially a lobby group during an active investigation – for all of the reasons set out in that memo,” she said.
“Because they [the lobby group] will have access to sensitive information about the investigation and then you don’t have control over the use of that information.”
Richard Taylor said he had not instigated the meeting so could not comment on the purpose of it. He said the suggestion it was to seek a “further discounted approach to the compliance action” did not accord with his memory of the meeting or the outcomes of it.
He said he was keen to attend because at that time Jam Land had not heard from the department for 18 months. He said “there was no suggestion at that time it was inappropriate for the NFF to attend” and was surprised to learn it had been an issue.
A spokesperson for the Department of Climate Change, Energy, the Environment and Water said its approach to managing potential breaches of national environmental law was outlined in its compliance policy.
“Consistent with this policy, the department does not comment on methodologies used or how they are used during individual matters,” they said.
“The relevant compliance action is currently before the federal court of Australia in relation to an application made under section 480K of the EPBC Act and, as a result, we will not comment any further.”
Guardian Australia sent questions to the NFF, which responded that it “routinely helps farmers navigate complex regulatory matters with federal departments. That’s part of our job.”
“The complexity of federal environment laws means that well-intentioned farmers are being caught by heavy-handed compliance actions when they think they are doing everything within their power to comply,” a spokesperson said.
