Statement of Events: Jenolan Caves 2004-2006
NSW Government and Jenolan Caves Reserve Trust Management 2004-2006
Is the Government’s $22.5 million funding justified?1
YEAR
2004-2005
2005-2006
2006-2007
2007-2008
2008-2009
2009-2010
2010-2011
2004-2011
INCOME $
-368,005
-5,497,092
-9,411,040
-533,565
5,494,568
-4,180,959
-1,616,6232
-16,112,716
GRANTS $
-1,034,648
-1,215,739
-478,711
-427,891
-6,720,712
-90,000
-500,000
-10,467,701
GOVT
PA COST $
-1,402,653
-6,712,831
-9,889,751
-961,456
-1,226,144
-4,270,959
-2,116,623
-26,580,417
GOVT
FULL COST $
-1,402,653
-8,115,484
-18,005,235
-18,966,691
-20,192,835
-24,463,794
-26,580,417
-22,580,4173
Why was Senior Counsels’ advice ignored?4
7 September 2004: Robertson, T.F. SC advice: “the appointment of the administrator is a nullity,
and in any event would be invalid because it was made for an improper purpose”.5
4 December 2008: Garnsey J.J. QC advice: “purported appointment in 2004 of Mr. Griffin as
administrator… was, in my opinion, invalid and not authorised under the Act”.6
Unless Senior Counsel’s advice was reckless, the government dishonestly appropriated property
belonging to Rosecharm Pty Ltd, the ultimate shareholder. At the least, this is theft.
1
Trading results and government funding: JCRT Annual Reports (2004-05 to 2010-2011)
Includes an amount of $1 million for xx
3 Reference is made to the Trust’s request for $4 million over five years fro capitol works
4 From 8 December 2009, the Minister for the Environment was the Hon. Frank Sartor MP. In 2010, JMA wrote to
several government parties alleging the appointment of Allan Griffon was not authorise under the Act and they intern
referred the correspondence to Minister Sartor who, in tern, responded stating ‘the government believes the appointment
was valid’. It is unclear why the Minister acted to conceal evidence he relied on. There appears some doubt he was not
telling the whole truth and it is noted that for the two years he was Minister the Trust reported losses of $5.8 million.
5
Robertson, T.F. SC advice presented in part by Coalition in Parliament in 2005 (7 September 2004)
6
Garnsey J.J. QC advice presented to St George Bank, copied NSW Government (4 December 2008)
2
(Printed 9 February 2012)
2
Statement of Events: Jenolan Caves 2004-2006
PART 1
On 31 January 2003, did the Minister have authority and powers under the National Parks
and Wildlife Act 1974 (NSW) to appoint an administrator?
19 June 1996: The Acting Minister for the Environment (the Hon. Bob Debus MP) states,7 “the Bill
ensures independence of the Trust… [Its] object is to amend the Act so as to… establish the Trust
to have the care, control and management of the lands so dedicated.
17 October 1996: The Attorney General (the Hon Jeff Shaw QC, MLC) states,8 “the independence
of the Trust is guaranteed by the Act”.
23 April 1997: The National Parks and Wildlife Amendment (Abercrombie, Jenolan and
Wombeyan Kast Conservation Reserves) Bill (“the Bill”) received assent.
Amendments in the Bill were set out in the National Parks and Wildlife Amendment (Abercrombie,
Jenolan and Wombeyan Kast Conservation Reserves) Act 1997 No 2 (NSW) (“the Act”),9 and the
amendments included:
Section 58V(2): The Trust is appointed as trustee of the Jenolan Caves Reserve Trust lands, and the
care, control and management of those lands is vested in the Trust.
Section 58W(1): The Trust has responsibilities, powers, authorities, duties and functions conferred
or imposed on it by or under this or any other Act.
Schedule 1, Amendments to the Act note:
Section 5 Definitions: Jenolan Caves Reserve Trust (“the Trust”) means the Jenolan Caves Reserve
Trust established by the Act. Member of the Jenolan Caves Reserve Trust Board means a person
holding office under section 58ZA.
Section 58ZA(3): The affairs of the Trust are to be managed by the Trust Board.
19 June 1996: The Hon. Bob Debus MP states,10 “Given the importance of the caves… and highly,
well-recognised successful management of them by the Trust… with slightly modified membership
will give greater emphasis to conservation focus of the Trust and enhance its reputation, as a
7
The Hon Bob Debus MP statements to Parliament, Hansards (19 June 1996)
The Hon Jeff Shaw QC, MLC statements to Parliament, Hansards (17 October 1996)
9 National Parks and Wildlife Amendment (Abercrombie, Jenolan and Wombeyan Kast Conservation Reserves) Act
1997 No 2 (NSW)
10
The Hon Bob Debus MP statements to Parliament, Hansards (19 June 1996)
8
3
Statement of Events: Jenolan Caves 2004-2006
conservations manager… [enabling] the highest level of protection for the natural and cultural
values of [karst] areas.
Section 58ZA(2):11 The Trust Board will consist of the following 11 members appointed [all
except one member not nominated] by the Minister:
(a) One member elected by the Minister... [with] expertise in karst conservation
(b) Two members nominated by the NSW Aboriginal Land Council
(c) One member nominated by the Director General [NSW Department of the Environment]
(d) One member nominated by the General Manager of Tourism NSW
(e) One member nominated by the Minister for Urban Affairs and Planning
(f) One member nominated by the National Parks Association NSW
(g) One member nominated by the Minister for Local Government
(h) One member nominated by the Australian Speleological Federation
(i) One member nominated by the National Trust (NSW), and
(j) One member nominated by the Nature Conservation Council
11
Section 58ZA(2) sets out the composition of the members of the Trust Board and names the parties responsible to
nominate them
4
Statement of Events: Jenolan Caves 2004-2006
PART 2
In 1996 Bob Debus stated in Parliament the Bill being introduced would result in a slightly
modified Trust, with emphasis on conservation, that would be an independent statutory body
with duties to care, control and manage certain karst lands. It could apply to the Public
Reserves Management Fund for capitol works funding.
23 April 1997: Upon receiving assent, the objects of the Act were set out in its long title, which
states: “[To] amend the Act to dedicate certain lands as karst conservation reserves... to establish
the Trust to manage those reserves.”
19 June 1996: The Hon. Bob Debus introduced the Bill in Parliament and set out the government’s
intentions.12 He noted the government’s purpose in amending the Act was as follows:
(a) The restructured Board will have emphasis on conservation

The legislation will give greater emphasis to conservation focus of the Trust and enhance its
reputation as a conservations manager.

Jenolan Caves…as a karst conservation reserve under the Act will enable the highest level
of protection for the natural and cultural values of those areas.

The Trust is recognised nationally and internationally as an outstanding manager of these
lands.
(b) The Trust, with modified membership, will be a statutory body

Given the importance of the caves… and highly, well-recognised successful management of
them by the Trust… with slightly modified membership [will] continue to manage these
areas rather than the Director-General of National Parks and Wildlife.

The speleological societies have made representations to the Minister seeking confirmation
the Trust would be a statutory authority responsible directly to the Minister.
(c) The Bill will ensure the independence of the Trust

The Bill will ensure the independence of the Trust and enable it to continue its effective
planning and management programs. It will increase the ability of the Trust to manage use
of the karst conservation areas for which it is responsible.
12
The Hon Bob Debus MP statements to Parliament, Hansards (19 June 1996)
5

Statement of Events: Jenolan Caves 2004-2006
[Speleological representative], Mr. Kier Vaughan-Taylor wrote to the Minister requesting
that in the karst conservation legislation… the Trust [will] remain independent and continue
its program of reform, particularly at Jenolan.

Australian Speleological Federation, NSW Speleological Council and Sydney University
Speleological Society (“the speleological societies”) made representations to the Minister
seeking confirmation the independence of the Trust would continue.
(d) To ensure care, control and management of karst lands

The object of the Bill is to amend the Act so as to… establish the Trust to have the care,
control and management of the lands so dedicated.

The result of this Bill will be to enhance karst conservative in [NSW] and to give additional
powers and responsibility to the existing Trust.

[Jenolan Caves] are regarded by many as a national icon and therefore warrant reservation
and protection under the Act.
(e) The Public Reserves Management Fund can assist funding capital works

[The Trust] will continue to be able to apply for further funding under the Public Reserves
Management Fund to assist it with major capital works.

[It] is financially independent, funding activities from entrance fees to Jenolan Caves; it can
seek support from Government through the Public Reserves Management Fund.
17 October 1996: The Attorney General (the Hon Jeff Shaw QC, MLC) responded to questions
raised by the Hon Elisabeth Kirkby MLC, based on the above statements made in the Legislative
Assembly by the Hon. Bob Debus MP, Acting Minister for the Environment. Hansards notes: 13

Kirkby: Did the government make a commitment to establish an independent regime of
karst management controlled by the Trust?

Shaw: The government repeatedly stated the Trust will be an independent body reporting
directly to the Minister.

Kirkby: If so, does the government intend to honour [this] commitment?

Shaw: Please refer to the Act, the Bill ensures the independence of the proposed Trust in the
management of karst areas within its control.
13
Hansards Transcript, Legislative Council, Karst Conservation Management and Legislation No.72 (17 October
1996).
6

Statement of Events: Jenolan Caves 2004-2006
Kirkby: Did the government make a commitment to enact a separate Karst Conservation
Act?

Shaw: The government gave the following pre-election commitment: “Labor will pass the
Karst Conservation Act to protect cave sites such as Jenolan Caves… under the Minister for
the Environment” and has now met this commitment.

Kirkby: If so, does the government intend to honour its commitment?

Shaw: Please refer to the [amendments], introduced into the Legislative Assembly by the
Acting Minister for the Environment, the Hon. Bob Debus, on 19 June 1996.

Kirkby: Will the Minister provide details of experts used in preparation of the government’s
proposed karst conservation legislation?

Shaw: The government consulted the Trust, speleologists and National Parks in developing
proposals.

Kirkby: What advice did these experts give and to what extent was that advice adopted by
the government?

Shaw: The independence of the Trust is guaranteed by the Act… [it] is the most effective
management body and should remain independent from the National Parks.
20 November 1996: Hansards reports statements made by the Hon. Pam Allen, MP, Minister for the
Environment, as follows:14
(a) Labor will introduce legislation to further protect the caves

Legislation has been introduced that greatly enhances the protection of the caves, or kast
conservation.

In accordance with commitments made by [Labor] when we went to the recent State
election… this legislation provided that the caves will have virtually identical status to that
of national parks.
(b) Labor has given assurances about the Trust’s future role

The Trust [will not]… be smothered by the National Parks and Wildlife Service. The
government has given the Trust repeated assurances of this [not happening].

I do not know why so many caving fraternity... are frightened at the prospect of the caves
being accorded virtually identical status to that of national parks.
14
http://www.parliamenr.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LA19961120012
7
Statement of Events: Jenolan Caves 2004-2006
(c) Concerns raised by the speleological societies are unjustified

There has never been any question about the value of the Trust or it’s future role. The Trust
will [continue to] have responsibility for the care, control and management of the European
heritage within [karst] lands.

I do not think the government could do anything to completely satisfy [speleological
societies’] concerns… they are worried Big Brother or Big Sister will take over the Trust.
8
Statement of Events: Jenolan Caves 2004-2006
PART 3
Were the following statements (and actions) by the Minister deceptive and dishonest, and
were they known to be untruthful by members of the government?
(a) Under s.58ZD, the Minister can appoint a person to audit the Trust’s affairs however, in
August 2003, the Premier appointed Council of Cost and Quality of Government (“CCQG”)
members, instead of the Minister, who had specific powers under the Act..
Section 58ZD(1): The Act headed “Inspection of Trust” states “the Minister may appoint a person
to inquire into, or carry out an audit of, any of the affairs of the Trust.”15

20 August 2003: The Trust’s Chair circulated a letter from the Premier to the Minister
approving the Minister’s request to the Premier’s Department to undertake an urgent review
of the Trust.16

The Premier’s letter noted the task will be undertaken as a Special Review under the
auspices of the Council on the Cost and Quality of Government (the CCQG).

The Minister’s failure to comply with s.58ZD meant he relied on a report by the CCQG to
the Premier and Cabinet, on his behalf, and was not provided to the Parliament.

The CCQG report on the affairs of the Trust was not intended under the Act and was not
transparent, as it was not provided to the Parliament, the Trust or the public.
(b) The Government apparently withheld funding stability and safety repairs to Main Road 253
causing public safety concerns and real problems of responsibility raised by the Trust Board,
from 1995.
24 July 2002: Trust Board Minutes refer to safety and stability of Main Road 253:17

20 March 1995: Trust advised RTA it had undertaken major future development study for
Jenolan Caves. Engineering consultants (SMEC) raised concerns regarding slope stability of
the main Sydney road entry into Jenolan Caves (MR253).

August 1997: Minister Debus wrote to Lew Laing (RTA) expressing the Trust’s concerns
regarding the stability of MR253.
15
National Parks and Wildlife Amendment (Abercrombie, Jenolan and Wombeyan Kast Conservation Reserves) Act
1997 No 2 (NSW)
16
The Hon Bob Debus MP, Minister for the Environment, File note of presentation to the JCRT Board Meeting (6
December 2003) obtained through FOI.
17
Document headed JCRT Business Papers – Draft Minutes of Board Meeting 24 July 2002
9

Statement of Events: Jenolan Caves 2004-2006
27 September 1999: Trust Board meets with RTA. The RTA recognises problem of road
stability due to old construction methods and geological processes but [this is not treated as
a] matter of priority due to [government] funding constraints.

29 September 2000: Trust wrote to RTA expressing concern on stability and RTA proposed
a more comprehensive inspection be undertaken.

12 September 2001: Trust wrote to RTA again requesting a copy of the RTA’s detailed
Slope Risk Assessment report.
The following information relating to MR 253 was published in ‘Minutes of the Jenolan Caves
Reserve Trust Board Meeting’, held:
17 December 2002:18 Trust notes concerns and copy of detailed Slope Risk Assessment report
not received. Trust resolved to seek advice from a barrister, as to the terms in which the Trust
should be conveying concerns to the government.
Trust resolved to write to the Minister expressing profound dismay regarding the stability of
MR253, which is still not resolved. Trust seeks to obtain a copy of Slope Risk Assessment
through Freedom of Information.
19 February 2003:19 Trust Chair advised Slope Risk Assessment report obtained from RTA
through FOI received. The Trust resolves to refer report to geotechnical consultants Coffey
Geosciences Pty Ltd for their advice on the content of the document.
22 May 2003:20 Board received Coffey report indicating substantial concerns with MR253
stability, as identified in RTA report. The concerns included at least one section of the road with
Assessed Risk Level 1… the highest level of risk to life or property.
Chair unsuccessfully sought to brief Minister or his staff that day. Trust Board recognised this
was paramount and requested the Minister for Roads and RTA to secure immediate interim
closure of MR253 to secure the safety of Trust staff and visitors.
18 June 2003:21 The Trust General Manager advised he met RTA that day and confirmed it had
a short-term strategy that was acceptable to the Trust.
18
ibid (17 December 2002)
ibid (19 February 2002)
20
ibid (22 May 2003)
21
ibid (18 June 2003)
19
10
Statement of Events: Jenolan Caves 2004-2006
20 August 2003:22 The General Manager provided update to the Board on 16 August 2003 RTA
meeting. RTA has still not provided its geotechnical survey; given importance of the issue,
General Manager will request Director-General, Premier’s Department, to raise this with Chief
Executive of the RTA.
15 October 2003:23 The General Manager advised the Trust Board the geotechnical report by the
RTA had been forwarded to Coffey Partners who advised the report identified 11 problem areas
within the road with one being of significant importance.
6 December 2003:24 The Minister attended Trust Board Meeting. His Meeting Notes state “I’m
pleased to report the Minister for Roads committed to $18.5 million over 3 years (commencing
2003-04) to upgrade the Jenolan Caves Road with possibility for a further work totalling $6M
from 2006-07.”
Minutes recorded by the Trust note the Minister stated “There will be extra funding for the
safety package, coming straight from Treasury of $18M over three years beginning now to
upgrade MR253 committed by the Minister for Roads.
The General Manager’s report noted, “RTA was addressing the identified problems with the
current road arrangements. Boom gates are being installed and signage upgraded.”
8 December 2003: A memorandum to all Trust Staff by Andrew Fletcher, General Manager,
Jenolan Caves Trust, stated: “The Minister confirmed the Government will also provide funding
to the Trust for infrastructure enhancements... the RTA has committed to upgrade sections of
MR 253.”25
24 August 2004: File note recording meeting: Megan Pryke, Keir Vaughan-Taylor and NSW
Speleological Society stated Government “spending $18M [on road] because only other option
is to close the reserve. ... the government said [it] would only fund the road upgrade if [it] gets
more control over Trust (Debus didn’t like the model). As soon as the Trust disappeared [on 6
December 2003], road money was provided.”26
(c) Government withheld capital funding the Minister had said it could apply for under the
Public Reserves Management Fund, which meant the Board was unable to comply with its
Plan of Management and maintain the Trust’s Jenolan Caves assets and karst.
22
ibid (20 August 2003)
ibid (15 October 2003)
24
ibid (6 December 2003)
25
Andrew Fletcher, Memorandum headed “Minister’s Briefing on Special Review (8 December 2003).
26
File note, meeting between Megan Pryke, Keir Vaughan-Taylor and NSW Speleological Society (24 August 2004)
23
11
Statement of Events: Jenolan Caves 2004-2006
19 June 1996: The Hon Bob Debus stated in Parliament: “The Trust is financially independent,
funding activities from entrance fees to Jenolan Caves; it can seek support from the Government
through the Public Reserves Management Fund.27
The Trust will, in effect, be reconstituted under the Act… [it] will continue to be able to apply for
further funding under the Public Reserves Management Fund to assist it with major capital works.
19 February 2003: Trust Minutes record, under “Capital Works Program… the Trust was not in a
position to fund required capital works programs necessary to provide underground infrastructure
of a suitable standard into the future. It was proposed that a submission be made to Treasury for a
further $4M over the next four to six years.”28
6 December 2003: Minister’s notes prepared for Board meeting note the Government “will fund a
safety package involving measures to address urgent caves and surface infrastructure that pose a
significant risk to public safety at a cost of $5.7M over 3 years (2004-05 to 2006-07).”29
This is not consistent with the Trust’s Board minutes during the past year, which do not raise the
need for “funding required for urgent caves and surface infrastructure that pose a significant risk
to public safety“, but seek funds for the capital works program necessary to provide underground
infrastructure of a suitable standard into the future.
8 December 2003: Following the 6 December meeting, a memorandum was sent to all Trust staff
by Andrew Fletcher, General Manager. It stated: “The Minister confirmed the Government will
also provide funding to the Trust for infrastructure enhancements... [and] the RTA has committed to
the upgrade of sections of MR 253.”30
4 June 2004: The Minister later addressed Parliament and stated: “The Council recommended a
capital works program to address the outstanding infrastructure works. A backlog of capital and
maintenance work has arisen across all four reserves.”
Hansards reports the Minister stated: “Jenolan was not recovering enough revenue to reinvest
sufficiently, even in its own infrastructure and product development, and was forced to rely on
government grants to cover shortfall.”31
27
Ibid 3185
Trust Minutes (19 February 2003)
29
The Hon Bob Debus MP, Minister for the Environment, File note of presentation to the JCRT Board Meeting (6
December 2003) obtained through FOI.
30
Andrew Fletcher, Memorandum headed “Minister’s Briefing on Special Review (8 December 2003).
31
ibid
28
12
Statement of Events: Jenolan Caves 2004-2006
This was inconsistent with the Minister’s statements recorded in 6 December 2003 Draft Minutes of
the Trust, and contradicts 19 June 1996 statements when he emphasised “the trust was financially
independent… [and] can seek support from Government through the Public Reserves Management
Fund.”
24 May 2004: News Release from the Office of Attorney General and Minister for the Environment
headed “Jenolan Caves to Undergo Facelift”.
One of Australia’s oldest tourist attractions, Jenolan Caves, will be part of a $4M facelift to
protect the caves, improve facilities for 250,000 annual visitors, and boost regional tourism,
Environment Minister Bob Debus said today.
Mr Debus said the biggest overhaul in Jenolan’s history includes a $4 million capitol works
program at the Jenolan, Wombeyan, Abercrombie and Borenore caves including a range of
priority infrastructure upgrades and maintenance throughout the caves to improve the visitor
facilities.
The revitalization program aims to improve… and enhance caves systems as a major tourist
destination for local and overseas visitors. Improvements will be made to lighting, handrails
and steps within the caves and to walking tracks and other facilities in the surrounding
areas.”32
(d) The Minister failed to provide independent advice to the Trust Board on 6 December 2003,
and later the Parliament and public, when he referred to rights under the s.58ZE to appoint
an administrator and not reappoint the Board when the current term expired.
6 December 2003: The Minister is on record as having briefed the Trust Board on outcomes from
the Special Review by the CCQG. He told the Board when the term of the Board concludes on 31
January 2004, an administrator will be appointed (as provided under the Act) and the administrator
will have all the powers, responsibilities, duties and functions of the Board. Trust Minutes note:33
The CCQG Review confirmed the Trust Board was asked to deal with problems it could not
cope with and these problems cannot be reconciled unless there is substantial change to the
structure altogether, dramatic change. …There was not a word of criticism of the Board in
the Review, but of the government that asked the Trust to deal with matters beyond [the
Board’s] capabilities.
32
33
The Hon Bob Debus MP, New Release (24 May 2004).
Trust Minutes (6 December 2003)
13
Statement of Events: Jenolan Caves 2004-2006
The Administrator will resolve the Caves House lease. The Labor government was not
responsible for writing the looney lease. The government, having more resources, can deal
with these issues better. [Our] purpose is to better integrate the commercial activities into a
total plan for management of the area.
The Administrator will consider the following operational matters; Risk management
strategy, Jenolan consulting, Caves House lease and other issues of detailed nature. I, and
the Government, greatly appreciate the work this Trust and we will ensure we say so.
Richard Mackay is reported to have said the Board will recommend the Administrator be
engaged, [with] Government funding the Administrator. The minutes note the Chair said it
became apparent government was not going to fund the full package, and the Board agreed.
Meeting notes state: “got to get relevant bits of Government working on roads, get money to
[Trust] managers for capitol works.
Following the Minister’s presentation and Board discussions, it was resolved that:
(1) The Board note information provided by the Minister on outcomes of the Special Review
by the CCQG, and
(2) The Board recommends to the Minister that at the expiry of the current Board’s term on
31 January 2004, an Administrator be appointed pursuant to 58ZE of the Act to facilitate
the implementation of decisions made by the CCQG.
Prior to and at the 6 December Board Meeting, there was no evidence the Board members:

sighted the Special Review carried out by the CCQG; or

obtained advice if the CCQG was entitled, under the Act, to carry out its review, or

sighted the basis for the recommendations because the review was not transparent; or

could support the Minister’s actions in allowing their term to expire by effluxion of time; or

had necessary powers to recommend to the Minister to not comply with s.58ZA(1); or

had necessary powers to recommend to the Minister to not comply with s.58ZA(2); or

had independent advice the Minister could appoint an administrator under s.58ZE; or

sought independent legal advice prior to making recommendations to the Minister, or

was advised to seek independent legal advice by Bob Debus, the Attorney General.
14
Statement of Events: Jenolan Caves 2004-2006
24 August 2004: File note recording matters discussed at a meeting between Megan Pryke and Keir
Vaughan-Taylor, and the NSW Speleological Society, notes:34

The CCQG review findings confirmed what the Board was saying: it needs supplementary
funding from government.

The government says the Trust has to be self-funding [but] it gave the Trust the Borenore
Caves without funding to look after them.

The administrator suggests the Trust was insolvent [however] it were not because it had
[$1.5M] in the bank.

There were problems with the road. We did not understand why this package of $18M is not
dependent on legislation being passed.

The Minister was appraised of road concerns years ago and did nothing.

The Minister’s report makes very vague statements about structural problems.

The government is looking at an integrated solution [but] the Caves House [lease] would
require the government buying [it] and relicensing [it] to a private entity.

The Board members are nominated by various organisations [and] the Board has done some
good things.

When [the Board] tried to force some action over the road, it probably brought about its
demise.

The legislation says [the Minister] has to reappoint the Board after six months. He cannot
reappoint the administrator.

The government said it would only fund the road upgrade if it gets more control over the
Trust (Debus did not like the model).

As soon as the Trust disappeared, the road money was provided.

We think the Board should be maintained. It would be very hard for a conditional operation
at Jenolan Caves to be maintained without some capital injection by the government.
34
File note, meeting between Megan Pryke, Keir Vaughan-Taylor and NSW Speleological Society (24 August 2004)
15
Statement of Events: Jenolan Caves 2004-2006
(e) In the absence of advice the Minister had powers under the Act to appoint the administrator,
he misled the Parliament when he published notice on 20 January 2004 pursuant to s58ZE
regarding the appointment of the Administrator.

20 January 2004: The Minister’s Notice published in the Government Gazette stated:
“pursuant to section 58ZE of the Act, [I] appoint Mr. Alan Griffin as Administrator to the
Jenolan Caves Reserve Trust from 1 February 2004 to 31 July 2004.”35
The Minister knew “the only circumstance an administrator can be appointed to the Trust is
where the Minister removed all members of the Board from office. He did not do this, their
term of office expired by effluxion of time and was not truncated by removal.36
(f) Further, the Minister also appointed the Administrator of the Trust for an improper purpose.

4 June 2004: Hansards reports the Minister said, “an administrator should be appointed to
review the management of the Trust… [and] make an analysis of the Trust’s financial and
structural arrangements”.37

The purpose of appointing an administrator is to ensure the affairs of the Trust are property
conducted and to enable in due course the reappointment of a Trust Board in accordance
with the Act.

As the power to appoint the administrator only arises when the Minister removes all Board
members, it is a reserve power to be exercised when the Minister is of the opinion the Trust
Board hasn’t properly performed its functions of care, control and management of the karst
lands. In this case, the administrator has no wider function than s.58ZE(3) of the Act, and it
is not to carry out an investigation.

Auditing affairs of the Trust is the responsibility of a person appointed under s.58ZD, of the
Act to inquire into or audit Trust affairs. The appointment of an administrator avowedly to
investigate the Trust and, as a precursor to extinguishment of the Board and its powers of
care, control and manage Trust lands, is beyond the scope of the power of appointment.

The power to appoint an administrator was exercised to achieve a result contrary to the
provisions of the Act, a conclusion readily drawn from the fact the Minister sought to amend
the Act in 2004, unsuccessfully, to authorise a result (handing over control of Trust lands to
the Director-General of the Department) that he could not otherwise achieve.
35
The Hon Bob Debus MP, Notice in Government Gazette (20 January 2004)
Tim Robertson SC advice, referred to Parliament by Coalition (7 September 2004).
37
The Hon Bob Debus MP, Hansards (4 June 2004)
36
16
Statement of Events: Jenolan Caves 2004-2006
(g) The Minister failed to respond to stakeholder concerns, including allegations he acted
unlawfully by breaching sections of the Act, in particular s.58ZE.
Section 58ZE of the Act is the source of power to appoint an Administrator to the Trust, and sets
out the Minister’s duty to reappoint Members to the Trust Board:
58ZE Removal of Trust Board members and appointment of administrator
(1) The Minister may, by notice published in the Gazette:
(a) remove any or all of the members of the Trust Board from office , or
(b) remove all the members of the Trust Board from office and appoint a person as the
administrator of the Trust.
(2) If the Minister removes any or all of the members of the Trust Board under subsection (1), the
Minister is to appoint new members of the Trust Board to fill the positions of the members so
removed as soon as practicable and, in any case, within 6 months after removing the members.
6 December 2003: The Minister advised the Trust Board the Administrator will be given a fixed
contract term for 2 years.
The Administrator’s appointment is limited to six months according to s.58ZE(2) and this is a lack
of evidence indicating the Minister intended to reappoint the Trust Board, having not contacted the
stakeholder bodies responsible for nominating members under s.58ZA(2) and suggests the Minister
intended to disregard the basis for relying on s.58ZE.
1 August 2004: The Minister still had not reappointed new members to the Board in contravention
of the Act. The Minister had no powers to appoint the administrator, and likewise, had no powers to
reappoint the administrator six months later. The Administrator remained until 1 July 2006.
23 August 2004: Megan Pryke, President, the NSW Speleological Council wrote to Mark Andrews,
the staff member assisting the Minister for the Environment, and notes:38

[The Speleological Council] has been advised by Mr. Griffin the Minister purported his term
as administrator. On our reading [of the Act], there is no power to appoint an administrator,
save for a term not to exceed six months.

At the expiry of that term, the Board must be reappointed. For this reason, we consider the
Minister’s failure to reappoint the Board to be in breach of the Act.
38
Megan Pryke, Letter to Mark Andrews (23 August 2004)
17

Statement of Events: Jenolan Caves 2004-2006
Please provide, in detail, your justification for this.
6 January 2005: Administrator writes to Caves House lessee regarding allegations his appointment
was in breach of the Act. A copy of the Administrator’s letter was provided to the Minister and the
Government’s lawyers, Mallesons Stephens Jacques. The Administrator states:

[You] have problems with [the Trust’s] compliance with the Act and question the operation
and legal status of the Trust. For the record, the Trust rejects your allegations [it] is not
complying with the Act. 39
20 January 2005: Megan Pryke writes to the Minister and Administrator setting out an outline of
the Speleological Council’s concerns:40
I write to express ASF’s deep concern at the process being undertaken to restructure the
management of lands currently being managed by the Trust. In summary, ASGF considers the
process suffers from the following flaws:

Failure to address the key issue… to manage the reserves in an ecologically and
economically sustainable manner

Attempting to put in place a new management regime without a definite plan for the future
of the reserves (ie: Jenolan commercial precinct)

Substantial diminution in stakeholder involvement in management in all proposed models

Proposed changes to management are based on spurious arguments with no economic
justification

Proposed commercial licence is likely to erode rather than augment available funds
6 June 2005: Megan Pryke wrote to the Shadow Minister for the Environment, the Hon Michael
Richardson MP, noting:41

We are concerned [governments] proposals are not in the best interests of management of
Trust lands. We are writing to seek [the Coalition] support for a Legislative Council inquiry
into the operations of these four reserves and their future management.
39
Alan Griffin letter to Jenolan Caves Resort Pty Ltd (6 January 2005)
Megan Pryke, Letter to Mark Andrews (20 January 2005)
41
Megan Pryke letter to the Hon Michael Richardson (6 June 2005)
40
18

Statement of Events: Jenolan Caves 2004-2006
In the past, the Trust has been required by Government to run in a financially independent
manner. The government has provided individual grants for specific projects… but has not
financed the Trust’s day-to-day operations.

In 2003, the CCQG reviewed the Trust’s operations. We understand this review was partly
prompted by the Board wishing to access increased government funding for its operations,
given its income was insufficient to cover essential infrastructure works.

The administrator has told us the Review found the financial model… was not sustainable as
the potential to invest in renewing or replacing infrastructure was limited.

We are concerned the government’s proposal is not in the best interests of the reserves and
may lead to a decline in management quality of these reserves.

We consider the transfer should not take place until the government is able to satisfactorily
guarantee there will be no decline in management.

In our view, this is the best safeguard… [for] stakeholder based management Board.
(h) The Trust required government funding to address stability and safety concerns with MR253
and because at least one section of the road had ‘Assessed Risk Level 1’, the highest level of
risk to life, and because it required capital for infrastructure, but it was not insolvent.
18 June 2003: The Board Minutes note it resolved: The proposed 2003/2004 operational budget to
be adopted; and the proposed 2003/2004 capital works budget to be adopted. The Board noted that
at present the Trust was solvent and able to pay its debts as and when they fall due.42
30 June 2003: The Trust’s Annual Report43 noted, two weeks later, it had cash reserves totaling
$1.5 million.
20 August 2003: Minutes note the Chair circulated a copy of a letter from the Premier of NSW to
the Minister approving the Minister’s request for an urgent review of the Trust, to be undertaken as
a Special Review, under the auspices of the Council on the Cost and Quality of Government (the
CCQG).44
42
Trust Minutes (18 June 2003)
Jenolan Caves Reserve Trust Annual Report at 30 June 2003
44
Trust Minutes (20 August 2003)
43
19
Statement of Events: Jenolan Caves 2004-2006
15 October 2003: Minutes note the Trust General Manager provided a verbal report to the Board on
the improved outlook for the Trust. Revenue year to date was 96.57% to budget [down 3.4%] whilst
expenditure for year to date was 87.98% to budget [down 12.02%].45
30 June 2004: The Trust’s Annual Report46 notes Trust cash reserves of $5.66 million.
30 June 2005: The Trust’s Annual Report47 notes Trust cash reserves of $5.6 million.
(i) The Minister apparently makes unsubstantiated statements in the Parliament on 4 June 2004
regarding the need for the urgent CCQG review.
4 June 2004: The Minister addressed Parliament in his Second Reading Speech and advised it on
the Government’s purpose for amending the Act.48
(1)

The Minister sets out the alleged purpose of amendments to the Act
[The Bill] proposes minor amendments to Sect. 8 and 58ZA of the Act. … [it] allows the
Minister to appoint the Director General of the Department of the Environment and
Conservation as an alternate to the Trust Board.

The minor amendments… I have described are required to transfer the management
responsibility from the Trust to the DEC.
(2)

The CCQG review reinforced the need for revised capital arrangements
In recent years, the Trust has only been able to meet its financial resource requirements by
deferring capital works. … [It] is not recovering enough revenue to reinvest sufficiently
even in its own infrastructure and product development

[The Trust] has relied on government grants to carry out essential works. … The review has
recommended a capital works program to address the outstanding infrastructure works.

I announced a revitalisation package to conserve the natural and iconic assets of the caves…
[it] includes $18 million [for] Jenolan Caves Road and $4 million capital works program to
upgrade important cave and above ground infrastructure.
(3)
45
Trust’s financial arrangements required the urgent CCQG review
Trust Minutes (15 October 2003)
Trust Annual Report at 2004
47
Trust Annual Report at 2005
48
National Parks and Wildlife Amendment (Jenolan Caves Reserve Trust) Bill 2004
46
20

Statement of Events: Jenolan Caves 2004-2006
[The Trust] was forced to rely on Government grants to cover the shortfall. … Jenolan is
expected to subsidize maintenance of the other reserves. … [There is] a backlog of capital
works and maintenance across all four reserves. … Supplementation was required from the
Government in 2003/2004.

I announced a revitalisation package to conserve the natural and iconic assets of the caves.
The package includes:
(1) $18 million program of works on Jenolan Caves Road, and
(2) $4 million capital works program to upgrade important cave and above ground
infrastructure.
(4)

The review is silent on Trust’s care, control and management of caves
Last July, Government commissioned the Council on the Cost and Quality of Government
to carry out a Special Review of the Trust. … [It] recommended when the term of the Trust
Board expired in January 2004, an Administrator should be appointed;

[The Review] found that although the Trust performed well within constraint of existing
financial arrangements, the financial structure could not be sustained indefinitely. … [It]
recommended when the Administrator was appointed, he should develop a strategy for
implementation of the government’s policy decisions.
(5)

Minister reports plan to revitalize karst reserves in New South Wales
The Board expressed concern about long-term financial sustainability of the Trust under its
existing business model49. … Government proposes to increase efficiency of management of
karst reserves in NSW while maintaining the highest levels of environmental protection.

The Administrator has analysed the Trust’s financial and structural arrangements and [has]
confirmed recommendations of the CCQG.

I have announced a revitalisation package to conserve the natural and iconic assets of the
caves. …The package includes establishment of a specialist unit within DEC to ensure best
practice management of karst areas throughout NSW. This will be carried out by:
49
There is no evidence of this comment being made in recent Trust Minutes (2002-2003)
21
Statement of Events: Jenolan Caves 2004-2006
(1) Establishment of a Karst Management Advisory Committee… comprising key
stakeholder representatives, including speleologists, local government, traditional owners
and the National Trust.
(2) Consolidation of the management of karst reserves, ensuring Abercrombie,
Wombeyan, Borenore and Jenolan managed, along with the State’s thirty other
significant cave systems, by one organisation.
4 June 2004: Megan Pryke, wrote to the Shadow Minister for the Environment, Michael Richardson
and presented an independent view on unsubstantiated statements by the Minister:50

The government and administrator claim the Trust was to be self-funding [however] it was
set up to report to the Minister… and like DEC, is eligible for Treasury funding.

The $18M committed [by government] to the RTA road is due to serious safety concerns
[and] this work is substantially complete demonstrating the Bill is not necessary.

The $4M capital works program is a continuation of work being done by the Trust [with]
$3M to address safety concerns and $1M to establish a self-guided cave.

The transfer of functions from Trust to DEC is only changing funding within departments
[as] alternative-servicing arrangements could be made between the Trust and DEC.

The Bill may seem benign in that it does not remove from the legislation provisions relating
to the Trust’s composition. Its purpose seems to be so government can bypass stakeholder
involvement in the decision-making process.

We have met the administrator who is working under an ambit given by the government and
have asked government to review a cabinet decision made last year. The decision was based
on the CCQG review yet the review document has not been published.

The Bill is not necessary for the proposed revitalisation package to be implemented.
21 June 2004: The Shadow Minister for the Environment, Michael Richardson provided an internal
memorandum to the Opposition stating “the government has advanced no compelling argument for
abolishing the Trust.”51
50
51
Megan Pryke, NSW Speleological Council, letter to Michael Richardson MP dated 4 June 2004
The Hon Michael Richardson MP, Memorandum setting out Coalition’s views (dated 21 June 2004)
22
Statement of Events: Jenolan Caves 2004-2006
PART 4
On 12 October 2005, the Minister made statements in the Parliament seemingly based on lies,
concealment and not telling the whole truth. This had the effect of damaging the Jenolan
Caves asset value and the commercial value of the Caves House lease.52
12 October 2005: Bob Debus made the following statements under privilege:53

The Minister said he “initiated a special review of the Trust in 2003 by the CCQG [which]
found the Trust was managing its finances without recourse to recurrent funding, despite
structural impediments caused by a business model put in place by the former Coalition
Government.” The Minister failed to mention the basis for the CCQG’s unsubstantiated
remark nor did he provide justification for this statement.

If the CCQG made the remark, the Minister’s statement “the review found the Trust had
been doing well in difficult circumstances that could not be corrected without substantial
structural change” was said without supporting evidence however it supports the Minister’s
6 December 2003 statement at the Trust Board meeting when he said the Coalition structure
was “looney”. 54

The Minister said “to implement [the CCQG] review’s recommendations I appointed an
administrator whose job was to develop proposals for structural and legislative changes to
place the caves on a sound footing and to develop a new business model for the Jenolan
Caves commercial area”. The Minister doesn’t say why the CCQG review failed to address
this point.

The Minister stated, “I say by way of parenthesis the appointment of the administrator has
been examined by the Crown Solicitor, who found it was valid not only at the time but on an
ongoing basis. In the Crown Solicitor's view, there is no question about the validity of the
appointment of the administrator, the opinion of this or senior counsel notwithstanding”. In
an email to JMA, it is reported DEC said “to the best of [my] knowledge no document exists
and [I] talked to DPC who [said] they didn’t have it55.

The Minister said: “the former Trust has fully supported everything I have done with respect
to Jenolan Caves. I have had the most amicable relationship with former Trust members. I
52
In the two years the Administrator was managing the Trust, there may be an argument the value of the Caves House
lease fell from $11.5M in February 2004 to nil value. Without a Trust Board, the property could not be sold.
53 Hansards (12 October 2005)
54
Trust Minutes (6 December 2003)
55 Email from JMA to one of its committee members, recording DEC statements. (12 May 2011)l
23
Statement of Events: Jenolan Caves 2004-2006
had a meeting with them on 6 December 2003, at which they made it clear they believed the
course of action being taken by the Government was appropriate.” The Board had no other
options because they were under serious pressure dealing with real MR253 and were unable
to secure capitol funding from the Public Reserves Management Fund.
When the Board received the Coffey report on 13 May 2003,56 it noted substantial concerns
with stability and safety of MR253: “at least one section of road had Assessed Risk Level
1… the highest level of risk to life or property. Board Minutes noted it had taken eight yeas
for government to confirm it would fund repairs and throughout that period the Trust Board
members were accountable.
24 August 2004: NSW Speleological Society files state Megan Pryke and Keir VaughanTaylor said the Government only agreed to spend $18M upgrading the Sydney road because
the only other option is to close Jenolan Caves and the government’s position was “it would
only fund the road upgrade if it secured more control over Trust, as the Minister didn’t like
the model. As soon as the Trust [agreed to] disappear, money was provided.”57

The Minister said “in the past year visitation to Jenolan was up 6 per cent and it was up 5
per cent the previous year. The number of visitors to Jenolan reached 240,000 in 2004-05,
the highest since 1999-2000. These demonstrate propositions of the Coalition are wrong.
Notwithstanding claims about failures of tourist promotion, the fact is visitation to the caves
has been significantly increasing”. This is not totally correct because when Debus changed
the board’s composition in 1997, visitation was 270k. It has fallen to 240k (-12%) yet in the
five years prior, when the Coalition’s board was in place visitation increased by 30%.

The Minister said “the Government developed a revitalisation package for the caves to
conserve the natural assets and to assist local communities by providing more regional
employment and increase opportunities for tourism. It has increased funding with a $4M
capital program to upgrade the caves infrastructure….” In fact, $4M was for capitol works
that Debus referred to this in his speech to Parliament on 19 June 1996. He twice said the
Trust will “be able to apply for further funding under the Public Reserves Management
Fund to assist it with major capital works”.

The Minister made an untruthful statement when he said “the Bill is a result of detailed
negotiations with stakeholder and user groups. [The Shadow Minister] read out a lengthy
letter from Megan Prike apparently suggesting she represented the Speleological Society…
56
57
ibid (22 May 2003)
File note, meeting between Megan Pryke, Keir Vaughan-Taylor and NSW Speleological Society (24 August 2004)
24
Statement of Events: Jenolan Caves 2004-2006
Someone better able to so represent that society will be appointed to the karst advisory
committee.” In other words, does Ms Pryke believe she represents the NSW Speleological
Society. In fact, she does. She is the Char of that prominent speleological society.

The Minister lied about asbestos. He said “we often hear allegations raised by the lessee the
Government failed to address asbestos issues at Caves House. Those issues were raised
again by the [Shadow Minister] today, but the lease is absolutely specific: the responsibility
for the asbestos is clearly with the lessee”. In fact, the word asbestos does not even appear in
the Caves House lease.

The Minister lied to Parliament about test results and water quality. He said: “there are
allegations the Government is not supplying potable water to Caves House. These were
raised again today by the [Shadow Minister]. More than 15 years of testing by the
Department of Health show the Government has been supplying drinking water that
complies with the Australian guidelines.” The Minister knew the Trust was supplying
unfiltered, contaminate water to the public. The government allowed contaminated water to
be supplied to the public for two years after it knew about the problem and after signage
warning the public to only drink bottled water was removed in 2005.
25
Statement of Events: Jenolan Caves 2004-2006
PART 5
Did the Government breach the Occupational Health and Safety Act 2000 (NSW) and the
Crimes Act 1900 (NSW) by providing unfiltered, contaminated water to Jenolan Caves
visitors and staff in 2004-2006?
The Act sets out the duties of persons to provide potable drinking water to the public and the Trust
failed to do this at Jenolan Caves from 2004-2006.
The Occupational Health and Safety Act 2000 (NSW) 58 allows criminal penalties to be imposed on
an employer failing to provide safe workplace. The duty of care is breached in circumstances where
the risk was foreseeable and significant and where a reasonable person would have taken proper
precautions.
In determining a reasonable person taking proper precautions against a risk or harm, the law takes
into account the probability harm would occur if care were not taken, the likely seriousness of the
harm, the burden of taking precautions to avoid the risk of harm and the social utility of the activity
that creates the risk of harm.
Breaches of s.41A of the Crimes Act 1900 (NSW) 59 relates to poisoning water supply and in this
case a person is guilty of an offence if the person introduces any poisons or other destructive or
noxious thing into a supply of water, and the person intends to injure persons. In this case, breaches
of the Act carry a maximum penalty of imprisonment for 5 years.
Breaches of s.44A of the Crimes Act 1900 (NSW) relates to persons failing to provide necessities of
life. A person has a duty to provide other persons with necessities of life. A person cannot, without
reasonable excuse, intentionally or recklessly fail to provide other persons with necessities of life. A
person is guilty of an offence if the failure causes danger of death or serious injury, or likelihood of
serious injury, to other persons. Breaches of the Act carry a maximum penalty of imprisonment for
5 years.
Did the Government have reason to believe Jenolan Caves drinking water was not decontaminated
between 2004-2006, especially as sickness appears 48-72 hours after the public drink the water? Or
did they believe that infants, aged and vulnerable people would not become ill?
58
59
http://www.volunteeringaustralia.org/files/4M470AJYX9/OHS%20NSW.pdf
http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s41a.html
26
Statement of Events: Jenolan Caves 2004-2006
27 January 2005: Ecolab, Water Test Results and Recommendations were preened to the Minister
and Administrator.60
[Ecolab] was assigned to carry out water testing… Australian Drinking Water guidelines
indicate safe potable water be provided to the end user. The guidelines state water supply
will be maintained within the following:

Total aerobic heterotrophic bacteria (TPC) <100

Ecoli
<1

Total Coliforms
<1
Large numbers of aerobic heterotrophic bacteria (TPC) were detected in both holding tank
#1 (17,450 cfu/ml) and holding tank #2 (>25,000 cfu/ml). These organisms are the make-up
of various strains of microorganisms.
Recommendation: UV sterilisers are proven to perform poorly under conditions of
increased suspended solids [torpidity]… Due to high levels of bacteria in both tanks, the
potential risk of water contamination after UV steriliser is greatly increased.
Ecolab strongly advise: An alternate water source be provided, the current supply does not
have an appropriate microbial control program and is not acceptable as a safe, potable water
supply. The water, if consumed by the public is placing those persons at risk of exposure to
a potential health risk.
8 February 2005: JMA twice collected water samples. The first set was collected in sterile jars and
delivered to Barrett and Smith Pathology,61 Lithgow, and sent for analysis to Sonic Healthcare:
Total Pore Plate Count (TPC)
60

Hill Flats Kitchen (HFK)62
10

Chisolms kitchen (CK)

E.coli
Total Coliforms
3
4
3,800
13
21
Chisolms Bar (BCB)
10
2
7

St Trins staff kitchen (STK)
1,500
3
5

Gatehouse bathroom (GHB)
30
2
5

Caves House (AHB)
4,700
<1
8

Caves Case (NB)
40
11
20
Richard Brown, Business Development Manager, Ecolab, letter to David Templeton, JMA (27 January 2005)
Certificate of Analysis microbiology results collected 8 February 2005 signed by Sonic Healthcare and copies provided to the
Trust by the JMA parties
62 Codes on water samples were documented at the time and the locations are reported above on best possible basis
61
27
Statement of Events: Jenolan Caves 2004-2006
3 March 2005: JMA approach SONIC HEALTHCARE to carry out a second set of tests. On 11
February 2005, tests were carried out Bob Sinclair, Manager Environmental Testing, Food and Water
Testing and provided the following results, signed the Sonic Water Quality Report:63
Total Pore Plate Count (TPC)
E.coli
Total Coliforms

Trails Bathroom (TBT)
1,600
35
25

Staff Bathroom (STB)
270
2
8

Staff Kitchen (STK)
<1000
4
6

Trails Kitchen (TKS)
10
2
4

Trails Sink 1 (TS1)
1,100
25
5

Trails Sink 2 (TS2)
850
9
11

Trails Bistro (BCB)
10
2
4

Caves House Room 311 (113)
1,400
3
3

Caves House Room 217 (712)
190
2
3
Bob Sinclair: Recently microbiological tests (for thermotolerant coliforms) of the resort’s tap
water revealed positive results, with levels outside the National Health and Medical Research
Council Guidelines for Drinking Water in Australia. I was asked to write a report [when] I
visited on 11 February 2005.
Inspection of Site (11/2/05): On the day of inspection, the roof of the first cylindrical tank was
intact but rusty and in need of replacement. The surface of water in the tanks contained handsized pieces of vegetation as flotsam.64 Trees overhang both tanks with potential for leaves to
fall into any available opening.
Public Health Implications: It seems unacceptable the supplied water is not sufficiently
decontaminated to be of potable standard. The results of 19 water samples collected showed
varying levels [of E.coli] ranging up to 35 colony-forming units (cfu’s) per ml, all water
having passed through the UV filtration unit.
Remedial Action: Microbiological safety of water is ideal when multiple barriers are in place
to prevent introduction of pathogens (disease causing organisms). The first step to consider is
ways to reduce contamination at the source. A course filter to screen debris and schedule of
maintenance to check, and, if needed, unblock the filter. The second step is to upgrade the
disinfection system so it operates acceptably.
63
64
Sonic Healthcare Water Quality Report sent to JCR/ JMA (3 March 2003)
Hand-sized pieces of vegetation as flotsam and debris in the tank meant the UV steriliser is only partly effective
28
Statement of Events: Jenolan Caves 2004-2006
3 November 2005: Bryan Belling, Abbott Tout lawyers write to the Trust’s lawyers, John Samaha
and Nick Reeves, Mallesons Stevens Jaques, following 12 October 2005 Trust/ JCR meeting:65
[JCR] instructions are that absent water being properly filtered, there is no point in
undertaking joint water testing… JCR’s position is:
1. The Trusts water infrastructure, so called, is considerably run down and inadequate and
dies not provide clean and potable water.
2. That the water is not filtered.
3. That without filtration, the UV sterilisation system is inadequate to protect consumes of
the water.
4. There have been matters of complaint raised by JCR with the Trust for significant
periods of time. The Trust contends that the water is, at all material times, clean and
potable.
5. That under the Services Agreement, the Trust is obliged to provide water suitable for
human consumption 24 hours a day.
6. The Trust promised I the Plan of Management…. adopted in 1989 that the water would
be of the highest quality.
7. The Trust owns the infrastructure.
8. The Trust is obliged to fix and maintain the infrastructure.
9. The Trust has failed or refused to do so, in spite of requests for may years past.
10. The need to address these issues is urgent.
11. The failure to address these issues has resulted in loss and damage being sustained by
JCR and has expose JCR to legal liability.
12. JCR has no obligation to meet the costs of addressing these water and water quality
issues.
To the extent that our client misconceives these matters, you will no doubt clarify matters
for it, in writing.
65
JCR/ Abbott Tout letter to Government/ Mallesons Stevens Jaques following 12 October 2005 meeting (3 November 2005)
29
Statement of Events: Jenolan Caves 2004-2006
10 November 2005: JCR referred the RP Meagher AO QC advice was provided to the Premier’s
department the same day:66
There is, on the facts, no dispute the Trust is in default of its obligations. Water it provides (when it
does provide it) is hopelessly far from potable... Service Agreement... reinforces Trust’s obligations
to supply, and keep supplied, potable water. The Trust is in default under this. 67
9 December 2005: Did the Minister have a duty of care to ensure the Administrator and Trust kept
the public signage in-place advising the public to only drink bottled water, before the filtration was
installed the following August (2006)?
Signage was said to have been removed shortly after all parties received the Meagher advice. In this
case, were the actions of Government reckless or deliberate when they removed signage, placing at
risk any of the hundreds of thousands of vulnerable people visiting Jenolan Caves.
14 March 2006: GREATER WESTERN AREA HEALTH SERVICE, Peter Tissen, Senior
Environmental Health Officer, Greater Western Pacific Health Unit, Bathurst writes to Mr. Andrew
Fletcher, General Manager, the Jenolan Caves Trust regarding contaminated water samples:68
Greater Western Pacific Health Unit is concerned about bacteriological sample results from
Jenolan Caves Water reticulation system. [We] feel the most effective means of assuring the
drinking water quality, and protection of public health, is through preventative management
approach that encompasses all steps in water production from catchment to consumer.
Attached were the Water Microbiology Laboratory Reports of Analysis carried out by the
Institute of Clinical Pathology and Medical Research. It reported:
66

17 January 2006, Sample 260180025 – E.coli 9, Coliforms >200

7 February 2006, Sample 260390017 – E.coli 5, Coliforms 48

7 February 2006, Sample 260390018 – E.coli <1, Coliforms >200

13 February 2006, Sample 270450020 – E.coli 15, Coliforms 170

14 February 2006, Sample 260460025 – E.coli 10, Coliforms 83

14 February 2006, Sample 260470039 – E.coli 5, Coliforms 62

14 February 2006, Sample 260470040 – E.coli 3, Coliforms 66
RP Meagher AO QC appointed to the Court of Appeal of the Supreme Court of NSW in 1988 where he served for 16 years.
Following his retirement from the Court of Appeal he reviewed the Jenolan matters and reported his advice that was provided to the
Premiers Department on the same day.
67 Service Agreement; 29 June 1990 2.1 ‘the Trust is the authority responsible for the supply of Services to the Land’; Annexure A
the Trust will supply ‘to the Land at a maximum of 2800 litres of water per hour suitable for human consumption every 24 hours.’
68 GWH letter titled ‘Water Management at Jenolan Caves’ (dated 14 March 2006)
30
Statement of Events: Jenolan Caves 2004-2006

14 February 2006, Sample 260470041 – E.coli 3, Coliforms 53

14 February 2006, Sample 260470042 – E.coli 3, Coliforms 34

14 February 2006, Sample 260470043 - E.coli 4, Coliforms 43

14 February 2006, Sample 260470045 - E.coli 3, Coliforms 70

14 February 2006, Sample 260470046 - E.coli 2, Coliforms 48

14 February 2006, Sample 260470047 - E.coli <1, Coliforms 21

14 February 2006, Sample 260470048 - E.coli 3, Coliforms 59
31
Statement of Events: Jenolan Caves 2004-2006
PART 6
All members of the Executive Council failed to investigate the allegations the Minister had
appointed the Trust Administrator without powers under the Act and, as a result, cost the
public over $22.5 million.
There is evidence two Ministers’ for the Environment lied, concealed and failed to tell the whole
truth about the authority of the Minister, under the Act, to appoint the Administrator in 2004, and
both acted to make the resale of the property impossible.
1 February 2004: The Minister for the Environment, the Hon. Bob Debus, alleged he had powers
under the National Parks and Wildlife Act 1974 NSW to allow the term of the Trust Board to expire
by effluxion of time, and then not reappoint a Trust Board.
Until allegations of the lawful appointment of the Administrator are investigated, the government is
unable to assume it has good title to fund, operate and sell Caves House. Likewise, it cannot return
Jenolan Caves, Blue Mountains and Central West tourism to their previous levels.
The government must pay attention to public opinion because it can be held accountable at for its
actions, possibly before the next election. There can be a price to pay even when a lie works out as
the Government intended as it will inevitably damage any body politic by allowing a poisonous
culture of dishonesty.69
The chronology headed Jenolan Caves Water 2004-2006 raises allegations of dishonest conduct by
the previous government. It refers to endangering public health, failing to provide necessities of life
and allowing water to be contaminated. These are potential breaches of the Occupation Health and
Safety Act 2000 (NSW) and Crimes Act 1900 (NSW) and provide penalties including imprisonment
for up to five years.
The JMA Parties suggest the incoming Government has a duty to investigate these allegations. The
evidence supporting this supposition is not in dispute, however, who in the last government acted
recklessly or dishonestly. It is suggested all Executive Councilors knew what was happening and
failed to Act responsibility.
In 2004-2005, all Labor Executive Councilors knew what was happening.
In the Legislative Assembly:
69
Prof John Mearsheimer (Professor of Behavioural Science, University of Chicago) titled Why Leaders Lie (Oxford
University Press) 2011, p69
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Statement of Events: Jenolan Caves 2004-2006
12 October 2005: The Hon Michael Richardson MP, Shadow Minister for Environment, is reported
in Hansards:70
Make no mistake; Jenolan Caves is in a mess. An Administrator, Alan Griffin, has been in
place for 21 months. We are of the view the Government is running the case in an illegal way.
Jenolan Caves is NSW largest inland tourist attraction. Government… could not even provide
clean water to Caves House, the kiosk and businesses, one starts to get rather suspicious.
5 November 2005: Peter Trute, Daily Telegraph, reports on Jenolan water:71
Visitors are warned not to drink water after E.coli bacteria were found in water samples. The
management at Jenolan Caves Resort yesterday put up signs warning its visitors to drink only
bottled water. Visitors [staying overnight]… have been given free bottled drinking water for
more than a year.
The Administrator responsible for the [Trust], Alan Griffin said the ‘health department testing
has shown water is safe’. A spokesman for the Environment Minister Mr. Bob Debus said
“contamination claims [are] totally unsubstantiated.”
9 November 2005: The Hon Michael Richardson MP:72
I refer to an article in Saturday’s Daily Telegraph that reported operators of commercial
facilities at Jenolan Caves had erected a sign warning the water was not fit for drinking. This
is a disgrace. It is certainly an environmental standard that should not be applicable to the
Government. In the twenty first century one would expect, when one visited a major tourist
attraction such as Jenolan Caves, at the very least, to be able to drink the water.
My understanding is the operators of commercial facilities at Jenolan Caves offered to
install a filtration system at their own expense to ensure visitors and guests to the caves can
get supply of potable water. The licensee of Caves House has, I understand, been providing
guests with bottled water for some time because of this problem [which is] of Government’s
own making.
In the Legislative Council:
19 October 2005: The Hon Rick Colless MLC, states:73
70
See below:
http://www.parliament.nsw.gov.au/prod%5Cparlment%5Chanstrans.nsf/V3ByKey/LA20051012?open&refNavID=HA7_1 page:
18454
71 See below: http://www.parliament.nsw.gov.au/prod/parlment/hansart.nsf/V3Key/LA20051109006?open&refNavID=HA8_1
72 Notice of Motion10 November 2005, not called up prior to the House being prorogued on 19 May 2006
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Statement of Events: Jenolan Caves 2004-2006
A letter dated 15 June this year from David Templeton, manager JMA, which runs the kiosk
at Jenolan Caves, to Bob Carr, former premier of NSW, he points to problems the government
has been creating for the lessees at Jenolan Caves commercial zone. I repeat the bill does not
deal with those issues. In fact, the Minister denied this in his reply. [JMA] letter states:
Dear Mr Carr,
JMA provides food and beverage to staff and tourists at Jenolan Caves. Sonic water tested
Jenolan Caves tap water and confirmed that drinking water contains E.coli and other bacteria
from water tanks with open tops. The Administrator and Trust Managers were told this was
happening…
JMA really wants the Government and Resort [to] fix these problems immediately or to set up
a public inquiry and find out why people’s lives continue to be placed in danger and these
very important things ignored.
JMA and every staff member ask you to find the time to deal with this now.
Did Mr Templeton and his staff members receive a response from Mr Carr to this very
important issue – water possibly contaminated with bacteria that could give cave visitors
gastroenteritis and worse?
One has to wonder why the Government, which is supposed to be responsible for issues such
as providing clean water to visitors to Jenolan Caves, has taken such a cavalier attitude
towards this issue.
Did the Government not care about health and safety of visitors to the caves, or was this part
of the Government’s plan to try undermining the lessees in the commercial zone and forcing
them out of business so the Government could carry out Bts preferred option.
20 October 2005: The Hon Don Harwin MLC:74
I was in the Chamber when my colleague the Hon Rick Colless led the Opposition on the
[Bill]. The Opposition is of the view the Bill should not proceed to the second reading today
but instead be referred to General Purpose Standing Committee No. 5 for inquiry and report.
No satisfactory reasons have been given for replacing the Trust with [DEC].
73
< http://www.parliament.nsw.gov.au/Prod/Parlment/Hansart.nsf/V3Kev/LC20051019050 >
74
< http://www.parliament.nsw.gov.au/Prod/Parlment/Hansart.nsf/V3Kev/LC20051020042 > P18874
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Statement of Events: Jenolan Caves 2004-2006
The situation regarding deferred capitol works is very serious. My colleague the Hon Rick
Colless in discussing correspondence received from [JMA] regarding water quality is also
certainly very disturbing. I received copies of that correspondence as well. It is a serious
situation, and is indicative of what has happened to Jenolan Caves under this Government.
I was extremely disturbed to hear details the Hon Rick Colless went through in his speech
about the relationship between the Government and leasehold at Jenolan and believe the
House would benefit from further information as a result of an inquiry conducted by the
General Purpose Standing Committee No. 5 before the bill is second read.
There are very serious issues at stake and we want them considered.
What has followed is potentially serious. The government must investigate whether the Minister
had powers under the Act to appoint the Administrator. This has been the subject of written advice
by two senior silks and requires closure
During the Government period at Jenolan Caves it has spent $22.5 million of public money while
operating a property that it is alleged was secured unlawfully during the Bob Debus/ Alan Griffin
period, and this should not continue.
Despite the cost, the standard of Caves House accommodation has fallen from 4½ stars, when rated
by the official industry ratings body AAA Tourism in February 2004, to its present 3 stars rate at
the time JMA obtained its last report.
Now, the ABC is reporting views of Oberon Council
Better protection urged for Jenolan Caves75
18 January 2012: The Oberon Council says urgent planning is needed to preserve one of central
western New South Wales' most iconic tourist attractions. Concerns have been raised about the
availability of funding and maintenance of the Jenolan Caves. It says the current arrangements for
maintaining the caves are unsustainable and the federal and state governments must step in.
Oberon Councilor, Keith Sullivan, says a strategic plan is needed. "The major concern is there
won't be sufficient funding available in the short-term to continue the upgrading of the caves, and if
it does go into private ownership, it'll become beyond the economic means of the Australian family
person and we want it to continue to grow and be protective forever and ever," he said.
ABC News Release, “Better protection urged for Jenolan Caves” 18 January 2012
<http://www.abc.net.au/news/2012-01-18/better-protection-urged-for-jenolan-caves/3780484>
75
35
Statement of Events: Jenolan Caves 2004-2006
The JMA parties suggest government appoint a recently retired judge of the NSW Court of Appeal
or High Court to investigate these allegations so the future of Jenolan Caves returns to its previous
position as the premier inland tourist destination in NSW.
COPIES OF ALL DOCUMENTS REFERRED TO IN THIS CHRONOLOGY CAN BE MADE
AVAILABLE TO APPROVED PARTIES UPON REQUEST.