Image for The Rule Of Law – Tasmanian Style

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Picture: Bob Burton

“The prerequisite for everything political is moral.  Politics should be ethics put into practice.”  Vaclav Havel. “The ends justify the means.” Niccolo Machiavelli

Peter McGlone ( here ) has argued that the recall of the Tasmanian parliament to amend the PMAA permit conditions at the behest of Korda Mentha ‘is not “doubt removal legislation”, it is “democracy removal legislation”’. 

I would like to extend the argument further.

Korda Mentha has written that it has an obligation under law to seek the best outcome for Gunns’ bankers. The question arises about how far that obligation under the law extends.  Does it extend to having legislation rewritten in some laws in order to get the best outcome for their clients under their stated obligation to other, different laws? 

Well yes, apparently that is the case, at least as far as the Giddings government is concerned.  To put it another way, under the law which obligates Korda Mentha to get the best outcome for their clients, any other law can be changed.

That is quite remarkable on the face of it.

On what basis in law is it possible for a private interest to use a law to rewrite another law in Tasmania?  Can ordinary citizens do the same thing just to suit their own personal economic interests?  Well, the precedent may now be there for them to do so, but my guess is that it’s a precedent designed to operate for a select few, a select very few, for whom the ‘rule of law’ has a different meaning than when applied to others.

There is another aspect to this which extends McGlone’s argument a little further.

When Gunns’ bankers lent them money they did it within the context of the law which existed at the time, whatever it was.  They did it knowing exactly what the law was, what the conditions on the permits were, what the risks were, and so on.  Now, apparently, they wish to disavow the risks associated with lending Gunns money in years past.

There is little difference here between how the wealthiest Masters of the Universe have managed to socialise their losses after the financial crisis of 2008 so that now they are wealthier than ever.  Laws to make the victims pay while rewarding the perpetrators of the crisis are well underway across the Western world, and have been for some time.

It is well worth noting in this general context that ANZ, a key bank for which Korda Mentha is working to have the PMAA permit conditions changed by the Giddings government, is allegedly implicated in a major investment scandal and humanitarian disaster in Cambodia involving lending money to a Colombian sugar company.  The details of this hit the front page of the Fairfax press on 23 January, and needs to be considered within the context of the Tasmanian situation.

Where is the ‘rule of law’ when the law can be used by the corporate interest as justification to change other laws which they see as against their interest?  That is not the rule of law in a democracy.  It is certainly the rule of law in an oligarchy, or some other political system where the interests of a few under the law are protected as of more value than the interests of others.  It is the rule of law where inequality under the law is a basic presumption of how the law is written, and what the law is.  It is the rule of law where use of the word ‘democracy’ is mere propaganda, in fact a lie.

In the end, it means that ‘the rule of law’ as a statement about the integrity of legislation is merely political posturing and propaganda, a hoax and a lie.  It means in all seriousness that ‘The law is a ass – a idiot’, as Charles Dickens wrote in 1838 in Oliver Twist.

That is precisely where we are now at in Tasmania.  For anyone to say anything different is to echo the alleged words of Marie Antoinette, ‘they ask for bread, let them eat cake’.

Let us be clear about this.  The precedent was established in 2007 that the Tasmanian Parliament could be used as an arm of the private sector in a way that broke conventions that had not so thoroughly been beached before.  Turning the Parliament into the planning agency for Gunns in 2007 was a precedent which should have been closed off as a model for repetition after the 2010 election, but the opportunity was lost when McKim saw short-term political expediency as more important than holding to principled political ethics.

Since 2007, of course, the precedents established then have become central to the way that politics is conducted in Tasmania, imbued like mother’s milk across all parties.  Secrecy, closed door decision-making, deals out of sight, tactical manoeuvring and personal careerism have all become much more transparent as the real foundation of the Tasmanian political system.

It is no wonder that the Korda Mentha letter ( here ) is regarded as a non-event by the Tasmanian media and most Tasmanians. It merely indicates business as usual.  And moreover, isn’t it rude to read other peoples’ letters?  After all, when the Les Baker emails ( TT here and here ) about the need to keep Gunns’ information about the high levels of dioxin secret were leaked, it was like a lead balloon.  The collective political system shrugged their shoulders and looked away. It wasn’t even an embarrassment to Baker or to Gunns that they tried to hide the information.  They might just as well have said the dioxin levels were ballistic, and told everyone.  The Tasmanian politicians would have passed the PMAA no matter what the dioxin levels.

When Giddings introduces the amendments to the PMAA permits tomorrow, it will be the last act of a government without purpose, without vision, without ethics and fundamental principles.  It will be the last act of a government which has no vision except power for its own sake.

If the Tasmanian Parliament passes the legislation which Korda Mentha is seeking on behalf of its clients, it will only occur with the support of the Hodgman Liberals.  They have the opportunity to break the cycle established in 2007, to cut the cord, to take a stand which represents some respect for the ‘rule of law’, some respect for the notion that there should be equality under the law.  If they agree that some laws can be amended for the interests of a few, the clients of Korda Mentha, then they like the Giddings administration cannot be trusted to govern transparently or democratically.

Finally, a word about the Greens.  We are in a different political environment in 2014 than in 2010.  The only reason that the Greens have taken the high moral high ground in relation to the Korda Mentha scandal is that they have been sacked from their Cabinet portfolios.  For the whole period from May 2010 until now they have kept the Giddings Government in power, irrespective of the voluminous information made public about the Government’s real intention in establishing the roundtable-TFA arrangement throughout the period from then until now.  They kept absolutely silent when Giddings stated in Parliament that the aim was to get the pulp mill established.  Not a peep.  I wrote an article at the time, “Hush Lara, Hush” ( here ), which was greeted with icy silence. 

The Greens are now seeking to ask us to forget their alliance with Giddings, to forget that they had two members in Cabinet when Korda Mentha wrote to Giddings in mid-September last year.  They are asking us to forget their mismanagement of the portfolios they held between 2010 and the end of 2013.

The problem with politicians who espouse compromise as a virtue is that they cannot be trusted to match their rhetoric to their behaviour.  What we need is not politicians who seek to work out how the system works, like McKim, but politicians who seek to use the system to implement a holistic vision, made transparent to the public.

In the final analysis it is now ingrained in the Tasmanian political mindset – across the Labor-Green-Liberal spectrum – that the rule of law is about law to serve vested interests, not to serve the broader public interest.  That is where Tasmania is, otherwise there would be no question about even introducing legislation to amend the pulp mill permits.  It would be regarded as immoral and unethical to do so, and would dismissed out of hand.

What Vaclav Havel said is the opposite to the way things happen in Tasmania, for in Tasmania the ends justify the means.

Mill can operate in breach of permit conditions if legislation passes