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City Desk
4 September, 2008  
Power lawyers

The NSW government’s plans to privatise the NSW electricity industry remain in a right old mess – according to Alex Mitchell, our man on the south side of Macquarie Street. How come the sale of the electricity retailers doesn’t require the approval of parliament?

imageA week ago (now former) Premier Mauritzio Iemma and (now former) Treasurer Michael Costa (pic) announced that they would bypass parliament and push ahead with Plan B of their power privatisation ideas.

Instead of raising $10 billion with the sale of power generators to Chinese energy corporations there’s to be a $3 billion sale of three power retailers – Energy Australia, Integral Energy and Country Energy.

This change of gear was necessary because the passage of the generator privatisation legislation was halted in the upper house on August 28 after it dawned on the premier and the treasurer that they didn’t have the votes to push it through.

It didn’t meet Liberal leader Barry O’Farrell’s “public interest” test and anyway Fatty said you couldn’t trust Labor with all that money. Quite right too.

When the electricity generation sale plan was unveiled by the government it was floated that it wouldn’t need parliament to be troubled with passing any legislation. It could be wrapped into the June budget.

That was the notion hatched by Costa and his chief henchman, Primary Industries, Energy and Mineral Resources Minister, Ian Macdonald.

Same with Plan B. Iemma was running around on August 28 with a cheesy grin on his face saying a parliamentary vote was not necessary to sell the power retailers.

He assured everyone that was so on several occasions.

Where did he get that idea in his head?

imageAnti-privatisation MPs in the upper house helped to muck-up Plan A by introducinglegislation and forcing a debate and parliamentary approval.

To head off the legislation, the government asked senior law officers for advice on how to proceed with the $10 billion sell-off.

The lawyers said that the sale of the generators required substantive legislation to be passed by parliament before receiving Governor Marie Bashir’s assent at the executive council.

If that was the advice in March, why has it changed in August when the retailers are now on the block?

Has a more elastic legal view been conjured for the government, or is Mautitzio talking (more) nonsense?

imageAt the minimum there’d be a need for regulations to be presented to parliament.

The requirement is that regs have to be presented to parliament within 15 sitting days of being gazetted.

Despite Mauritzio (pic) and Lotta’s sweeping assertions, parliament cannot entirely be cut out of the sale loop.

There’s likely to be enough numbers in the upper house to send Plan B of the power sale racket to a parliamentary committee, where the whole shoddy process can be languidly raked over.

The Opposition, if it had half a brain, should demand to see the advice from senior crown law officers – the versions written in March as well as any subsequent revisions.

Maybe then it will be possible to clarify whether the government has the constitutional authority to proceed without substantive legislation, or whether it is trying to do something shifty.

Heaven forbid.