Comments
Good luck and I am with you in hoping that the Governor will see that this bill in parliament is a legal minefield. This is open slather at its best.
On Dioxins I seem to hit a brick wall whenever I mention worst case scenarios.
But
If the chemical factory that is planned as part of the pulp mill ever catches fire, then the amount of dioxins going into Bass Strait will be the least of our worries.
Chlorine Dioxide burnt will produce copious quantities of Dioxins and if we need a historical reference just google Seveso Italy.
A fire at the pulp mill chemical factory has the potential to wipe out Launceston, It may not kill the people but it will make the city unliveable forever, just like Seveso.
So there he goes again, Doomsayer, scaremongerer, but I really don’t want to be proven rightPosted by Pete Godfrey on 23/03/07 at 07:27 PMI hope that a version of this letter is being sent to every Legislative Councillor.
Posted by kate on 23/03/07 at 08:04 PMWell done Andrew. At last someone has commented on the “other” link.
The Mill now only faces three (feeble) barriers. Firstly the Bill must be passed by the Tasmanian Legislative Council, secondly, the Bill will then need to gain Royal Assent from the Governor, abd lastly the Federal Government will need to approve the mill through its own environmental process.
Of the three steps, the Federal Government has already stated that if fully supports the Mill and even if the federal Governmen changes hands I dont forsee any change in policy. The Mill will pass the feds approval process without doubt.
Most media commentary has concentrated on the second barrier (the Tasmanian Legislative Council). However the reality is that this is a VERY conservative chamber despite the “Independents” holding 10 of 15 seats. The Government will only require 3 “Independents” to vote yes - a rather easy task. We already know that one “Independent” is a Liberal-in-waiting and even in the highly unlikely event that Mr Martin crosses the floor or abstains, there are a number of southern MLCs whose electorates are sufficiently distant from the Mill to allow a yes vote without significant impact on their margins.
The interesting votes will be those of the 3 MLC who border the Mill, Mssrs Finch (Rosevears), Mayor Dean and Wing (Paterson). To some degree Ivan has painted himself in a corner and if he wants to maintain his mayoral position he is likely to be committing political suicide if he votes in favour of the Mill. To some degree Mr. Wing is in a difficult position and will be the vote to watch - as the president of the chamber he will have the deciding vote in the event of a split. However all things being likely the Bill will pass the Council without too much obstruction.
This leaves only the matter of Royal Assent as the only remaining barrier. It is highly unlikely that Sir William Cox will decline assent, being a key member of the establishment himself. However as much pressure should be applied to the Governor as is going to be applied to MLCs. The Governor’s signature will be the ultimate instrument which inflicts the Mill on the people of Tasmania. So why has his Excellency been so quiet on the matter during the whole mill process fiasco? Is the Governor doing his job by ensuring that the people of Tasmania have responsible Government? I think not. As I have commented before, it now makes sense to many as to why Governor Butler really had to go:
http://tasmaniantimes.com/index.php/weblog/comments/perhaps-the-butler-may-have-done-it/
I think however, we have all been sold up the river. I hope people like Miniser O’Bryne can sleep well at night.
Posted by W McKell on 23/03/07 at 08:05 PMHear hear Professor Wadsley, well put.
Can I urge you to provide a copy of this letter to Members of the Tasmanian Legislative Council, the Upper House, who will debate this legislation next week?
Their contact details can be found here:
http://www.parliament.tas.gov.au/lc/clist.htm
They need to get the message that, as you point, there are serious legal flaws within the Pulp Mill Assessment as currently drafted, and it should not pass both houses in its current form. The most serious flaw is the one you mention, S.11; what a disgraceful attempt to remove the opportunity of legal recourse from Tasmanian citizens in the event that this mill realises pretty much everyone’s worst fears.
Posted by Cameron on 23/03/07 at 08:13 PMWhy aren’t we seeing any reporting on the outrageous ramifications of S.11 in the mainstream media?
Sue Neales? Matthew Denholm? Anyone?
Posted by kate on 23/03/07 at 10:05 PM[Nothing in this comment should be interpreted as expressing an opinion on the substantive merits of Gunns’ pulp mill proposal. This comment is limited to the issues of constitutionality arising from Professor Wadsley’s contribution and that of Mr Alex Wadsley (‘Legal Anarchy’).]
[1] I understand that the calls by Prof Wadsley and Messrs Wadsley and ‘McKell’ for the Governor to withhold assent from the Pulp Mill Assessment Bill are indicative of the degree of emotion involved in the debate about the substantive merits of Gunns’ pulp mill proposal.
However, the withholding of assent would cause a major constitutional crisis and advocacy of that course of action is irresponsible.
Those arguing that the Governor should withhold assent should ask themselves whether they would support a Governor withholding assent from other Bills and whether they support a political system in which decisions are made not by elected representatives but by a single, unelected person in response to a letter from Prof Wadsley today or from John Doe tomorrow.
Mr ‘McKell’ (who would do us all a service by having the courage to write under his real name) made the following personal smear upon the Governor, Mr Cox, which deserves to be rebutted:
“It is highly unlikely that Sir [sic] William Cox will decline assent, being a key member of the establishment himself. “
The implication in Mr McKell’s statement is that the reason why it is unlikely that Mr Cox would withhold assent is because he is “a key member of the establishment”.
That is an unfair smear on a person who can’t defend himself and it also happens to be incorrect.
The reason why it is unlikely that Mr Cox would withhold assent is because to do so would be a breach of more than 300 years of constitutional convention and principle.
Although they apparently don’t realise it, Prof Wadsley and Messrs Wadsley and McKell would have found themselves on the Royalist side of the political conflict that ended in the constitutional settlement of 1688 and the enactment of the Bill of Rights.
I suspect that Wadsley, Wadsley and McKell would not support a Governor withholding assent from a Bill with which they happen to agree, so let’s be perfectly clear about what they are advocating, by implication: the imposition and enactment of their own political views regardless of the views of others in the community or their elected representatives. There is a name for that type of political system.
[2] Prof Wadsley urges the Governor to withhold assent until the Bill has been “subject to constitutional and judicial review”.
Prof Wadsley would do us all a service by indicating:
*exactly what he means by “constitutional and judicial review”;
*what cause of action he thinks might exist against the Crown in relation to this matter;
*who he believes has standing to bring an action seeking a declaration on the Act’s (if enacted) validity from the Supreme Court of Tasmania; and
*on what grounds he doubts the constitutional validity of the Pulp Mill Assessment Bill 2007.
In my opinion, there are not grounds to challenge the Act’s (if enacted) validity on the basis of the Constitution Act 1934 (Tas).
For those who are interested, you can find a link to the Tasmanian Constitution here: http://www.austlii.edu.au/au/legis/tas/consol_act/ca1934188/
Further, in the absence of inconsistent Commonwealth legislation, nor are there grounds to challenge the Act (if enacted) on the basis of the Commonwealth Constitution.
Those who are arguing for “constitutional review”, “judicial review”, etc would do well to acquaint themselves with some basic constitutional law. In particular, they might want to look up ‘parliamentary sovereignty’ in a political science textbook. [The classic text, in an Australian context, is Jeffrey Goldsworthy, The Sovereignty of Parliament (OUP, 1999).]
[3] Finally, I should emphasise that there is nothing particularly unusual about legislation that limits rights to appeal. At a Commonwealth level, an example is the Migration Act 1958, the constitutional validity of which has been repeatedly upheld by the High Court.
Again, those commenting on these matters might consult an introductory text, such as Morris et al., Laying Down the Law (Butterworths, various editions) to understand the relationship between statute, the common law and state and Commonwealth constitutions.
G. L. Hills24 March 2007
Posted by G. L. Hills on 24/03/07 at 11:53 AMAndrew, like Kate and Cameron, I urge you to send this letter to all the Tasmanian Legislative Councillors. They have to review this Bill next week and your comments may help them to realise their duty to the whole Tasmanian community.
Also consider sending a copy to Malcolm Turnbull .(JavaScript must be enabled to view this email address) - federal Minister for the Environment and Peter Garrett .(JavaScript must be enabled to view this email address) - federal Opposition spokesperson for the Environment.
Thank you for being so direct & strong!
Posted by David Obendorf on 24/03/07 at 01:58 PMCongratulations,Andrew for a very powerful but factually stated position of the costs of this mill.The press gives plenty of time to the benefits, but this statement of the costs should arouse every Tamanian to change. I earnestly hope the Governor is moved by this and withholds assent. Then perhaps we can all sit back and start a proper evaluation of this dangerous proposal, rushed through by both major parties in such obscene haste. Just what is going on? What power does Gay have over so many people?
Posted by John Biggs on 24/03/07 at 04:31 PMWhat can one say?.
The Governor of Tasmania no doubt has reserve powers, but they surely must be limited to ensuring that government functions and at the moment the emasculated Tasmania Lower House has the confidence of a majority of members and therefore can pass bills, including money bills, and has an appropriation to be going on with.
Governor Cox is bound to take the advice of the Executive in Council, if he is presented a bill passed by the 2 houses of the Tasmanian parliament properly elected under the Constitution Act [1934] as ammended. [Thanks to C L Biggs for the history and the explanation]
If a bill is amended in the upper house it has to go back to the lower for their agreement, until both houses can agree. The Liberal’s chance to paint themselves as different to Lennon’s Labor and get a bill that protects the interests they supposedly hold dear, the protection of the rights of property and the rule of law, has a second chance.
I hope the Professor has written to all the Legislative Councillors esplaining why the mill fails technically and thus the need for an approval process that allows a final review.
A bill, when given the assent of the Crown, becomes the law and the jurisdiction of the courts may be proscribed in such a bill. [Again thanks to Biggs for the example]
However, it is only Tasmanian law and anything done within the Australian jurisdiction has to conform with Australian law, and therefore is testable before the High Court, if that court considers there is a case to answer [gives leave to appear].
A person or corporation proposing to invest in an area that is controversial in Tasmania, who had their wits about them would take one of two courses.
The moral course of the upright citizen or the responsible corporation would be to allow enough time for the processes established under esxisiting law to take place and receive an approval, or not, the project assessed on its merit.
Or they would make deals to put up a façade of going through the motions knowing in the end approval would be given because of the projects value in relation to the economy, thus making a politician look good, and making the proponent a fortune [ from the propoents point of view].
Of course doing such deal[s] where they can be overheard or are seen to influence election outcomes makes a proponent visible, and when their project is not clearly environmentally acceptable to the community or on the science you must judge that the proponent is either stupid or exceedingly arrogant.
And if they have the whole process twisted into a knot to their own end what does it say about their view of those who follow the rules.
One would hope that the Legislative Council would amend the proposed Act to allow the courts to be used to appeal the process, as this is the channel for the protection of the public and private interests.
For Dr Amos to argue that Tasmania voted and therefore the government has a mandate, ignores the undertakings given by the Premier on behalf of the government and fails to take into account the rights of those who didn’t vote in the government.
Failing ammendment by the Legislative Council I can see this matter resting in the Federal and High Court, given that grounds to appear result from the decisions made by the Australian government and so the Lord of the Forest’s headlong tantrum like rush to get his own way could find itself hoist on so many time consuming obstacles outside of his influence he might as well have stuck with the RPDC process under the new Commissioner.
Instead, it appears the proponent has signed equipment supply contracts for mill machinery to meet the demands of the mysterious ‘windows of opportunity’ that drove the Wesley Vale Mill process. You should have more than a deal, you should have approval before spending shareholders money.
And so to meet the proponent’s needs, all of the processes used to justify adherence to the rule of law in the case of the proposed pulp mill are trashed and thus we end up attracting the type of investor that appears to fit with the public morals of a certain family man from Broadmeadows.
If the Legislative Council has a role it is to protect process and here readers is the struggle between what appears popular and what is moral.
Posted by phill Parsons on 25/03/07 at 07:28 AMTHE current premier must resign and an election called over the crisis in governance in the State of Tasmania.
As many commentators have suggested, the political charade played out over the last month confirms that there is certainly something rotten in the State of Tasmania.
Sadly the appeasing attitude of the Liberal leader of the Opposition shows that he is completely unfit to stand up to a bullying and devious premier and hence unfit to assume the office of premier. What would the late Bill Hodgman make of his grandson’s performance last week!
When the greedy manipulate the vanity of those in high office for their own ends, you have the beginnings of a rotting corruption and duplicitous deception; those greedy promising magical wealth and great kudos to the vain.
Directly or indirectly State and Commonwealth money has been given over to Gunns to develop and promote its Tamar pulp mill proposal. No-one in Tasmanian business or political circles has failed to ‘see’ this invisible cloth that is being feverishly woven out of the public’s ‘gold’ to be worn by our deserving ‘king’.
Of course the unsaid rule is that if you don’t see the value in this Project of State Significance then you are either stupid (like the Greens, TWS and the anti-development rump of Tasmania) or unfit for the office you hold.
So naturally none have claimed that they have not ‘seen’ this great mirage. And now we come to the end of this tragically sad parody … for now the elected premier has to wear this insubstantial garment that has been made expressly for him!
This is not a novel story line is to the Apple Isle. Just 10 days on the Island can show you how a populace is variously touched by the stench of patronage, self-censorship and grovelling.
How did Tasmania come to this … again?
It is not a year since that last political imbroglio engulfed Tasmania. The public conduct of the deputy premier, Bryan Green was questioned. In that case involving the State government’s deal with Tasmanian Compliance Corporation scandal, Mr Green’s actions were ultimately referred by the then Attorney-General to the Director of Public Prosecutions for investigation. Despite much filibuster and denial, in the Parliament and through press releases, the referral by AG to the DPP led to charges being laid forcing the deputy premier to resign his commission as a minister of the crown.
In the case of the unfolding revelations about the pressure RPDC panel chairman, Mr Christopher Wright was subject to by Mr Lennon, it appears that the current AG and deputy premier, Steve Kons is not willing to allow the DPP, Tim Ellis to investigate.
In another example of a controlling government, Steve Kons says he has received advice from the Solicitor-General, Mr Bale that Mr Lennon has no case to answer but Kons refuses to release details of the actual question he posed to the Solicitor-General, nor Mr Bale’s legal response to Mr Kons.
The crash-or-crash through approaches of Premier Lennon are now becoming rather familiar but he bears full responsibility for the carnage left in his wake — not just for state Labor but most importantly for the image of good governance in Tasmania.
We are all diminished by the arrogance and stupidity of our ‘naked’ premier. He is the one not fit to hold his high public office.
Posted by Henry Melville on 25/03/07 at 07:59 AMCan G. L. Hills tell us how a government can enact legislation for the sole benefit of one company? In particular, a company that donates large amounts of money to that ruling Party. Is this ‘standard’ practice & how legal is it? Does legislation have to be for the benefit of all constituents?
PS 300 years is a long time but the only thing we can be sure of in this world of ours is change.
Posted by Christopher Purcell on 25/03/07 at 08:44 AMAt last some real debate on the Pulp Mill Assent Bill!
I thank G.L.Hills for the contribution to the debate. Yes, I would not expect Governor Cox to withhold assent merely because an associate professor asks him.
But a Bill which removes judicial review over acts which have the potential to cause real personal damage (on the balance of probability) but which may not be criminal (beyond reasonable doubt) would seem to obliterate more than 300 years of advance towards social justice. Prior to the Australia Act of 1986, such a Bill might appear to be “repugnant to British Law”: did we really throw out such checks and balances when we became a sovereign state?
Of course, I am not an expert on Constitutional Law. My expertise, in this instance, relies on my engineering background and arithmetic ability: on the basis of my analysis of the Proponent’s submissions to the RPDC, on the balance of probability, dioxins WILL contaminate the food chain. Where is the judicial or quasi-judicial forum in which these claims can be challenged? Do we wait until developmental disorders show up in the children of Bass Strait fishermen? Do we wait until seals start dying on Tenth Island? Do we mortgage our houses in order to challenge the legislation in the Supreme or High Courts? Do we rely on consultants (paid by and therefore not independent of the executive Government who has passed the Bill in the Lower House) to acknowledge these concerns, when these issues are outside of their brief? Should fear of being wrong, or the lack of constitutional precedents, prevent me from putting forward my views to the Governor on this very serious matter?
To quote Harley Sorensen (http://www.commondreams.org/views02/0429-01.htm) “Fear can turn us all into Good Germans. We must resist it.”
Posted by Andrew Wadsley on 25/03/07 at 10:03 AMWhy doesn’t Tasmania have an Independent Commission Against Corrupt (ICAC) or and Anti-corruption Commission (ACC)...like other Australian state?
Is the “world-best practice” State for pulp mills approvals to become Australia’s ‘Zimbabwe’ for convenient corporate-government deals? Or are we destined to become ‘Tasmanistan’ - more akin to Putin’s Russia?
For all our sakes, lets hope not!
But when will this stupid swindling end?
Posted by David Obendorf on 25/03/07 at 10:23 AMGeoffrey Hills’ contribution is not only eminently sensible, but also correct in law.
A Governor acting according to convention and law must assent to a bill which is passed by a parliament. To not do so is to revert to a period in English constitutional history to which I am certain none of us would want to return - the monarch undermining the parliament.
Posted by Greg Barns on 25/03/07 at 05:25 PMI’ll try to answer a couple of questions.
First, Christopher Purcell in #11 - “Can G. L. Hills tell us how a government can enact legislation for the sole benefit of one company? In particular, a company that donates large amounts of money to that ruling Party. Is this ‘standard’ practice & how legal is it? Does legislation have to be for the benefit of all constituents?”
Is this ‘standard’ practice? - No, not standard practice but this is far from the only instance in Australia. Legislation directed at a single legal entity is probably more inevitable in a very small jurisdiction like Tasmania than it is in a much larger one. In the 1960s and 70s, a number of American political scientists and lawyers considered these sorts of issues in the context of the growth of discretionary executive decision-making; there are some parallels: Kenneth C. Davis, Discretionary Justice: A Preliminary Inquiry (1979); Theodore Lowi, The End of Liberalism (1979); Grant McConnell, Private Power and American Democracy (1966). German theorists have long been concerned with similar issues. Ingeborg Maus considers them in an environmental context, among others: Maus, Rechtstheorie und politische Theorie im Industriekapitalismus (1986).
Christopher - “In particular, a company that donates large amounts of money to that ruling Party ... [H]ow legal is it?”
This area is regulated by the Electoral Act 2004 and relevant sections of the Criminal Code Act 1924. [I must add that I’m not suggesting that any breaches have occurred.]
Christopher - “Does legislation have to be for the benefit of all constituents?”
In short, no. The remedy for perceived breaches of that principle is at the ballot box, not in a court of law.
The Tasmanian Parliament has all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of [the Australia Acts 1986] for the peace, order and good government of [the] State: Australia Act 1986, s 2.
The words ‘peace, order and good government’ place no substantive limitation on the Parliament’s legislative powers and therefore, although the balance of power between federal and state governments has shifted in Canberra’s favour since federation, there is a different sense in which the state parliaments have more legislative power (in a technical sense) than their Commonwealth counterpart.
Before the enactment of the Australia Acts, the Colonial Laws Validity Act 1865 (UK) provided that only legislation that was inconsistent with UK legislation specifically directed at that colony could be voided on grounds of repugnancy. [This also answers a point raised by Mr Wadsley.]
Second - Phill Parsons wrote - “However, it is only Tasmanian law and anything done within the Australian jurisdiction has to conform with Australian law, and therefore is testable before the High Court, if that court considers there is a case to answer [gives leave to appear].”
You’re right but in the absence of inconsistent Commonwealth legislation, I do not see grounds for a challenge. I guess my point was that you need a cause of action to take something to the High Court; Australian courts don’t generally issue declaratory judgments on abstract issues when the person bringing the action has no interest (in the legal sense of the word) in the matter: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.
Further on this point, Mr Wadsley wrote: “on the basis of my analysis of the Proponent’s submissions to the RPDC, on the balance of probability, dioxins WILL contaminate the food chain. Where is the judicial or quasi-judicial forum in which these claims can be challenged?”
Tort law would provide a remedy to affected individuals if, on the balance of probabilities, they showed that they were injured by dioxins from Gunns’ pulp mill.
Third, Andrew wrote - “Should fear of being wrong, or the lack of constitutional precedents, prevent me from putting forward my views to the Governor on this very serious matter?”
No, of course not. But if you’re interested in influencing the decision about the pulp mill, I’d have thought you’d be better off trying to persuade the people who actually have the power to make it: members of the Tasmanian and Commonwealth parliaments. In light of the polls at the moment, not only should you write to Malcolm Turnbull but to Peter Garrett. There is no question that the Commonwealth could use its power over corporations, exports or external affairs to halt the mill.
Like Christopher Wright QC, the Governor, Mr Cox, was a respected jurist whose impartiality and independence is beyond reproach. I don’t think that trying to drag them into politics is appropriate, whether you’re Paul Lennon or Joe Citizen.
Thank you to those - Andrew, Christopher, Phill, Henry and David - who are making substantial and interesting contributions to this debate. I will allow “Mr Enid Snodgrass-Smythe’s” comment speak for itself.
Posted by G. L. Hills on 25/03/07 at 06:30 PMThe revolution of 1688, while enshrining the domination of Parliament over the other three branches of government, was not glorious. It also represented the installation of a Dutch puppet king by invasion, systemic discrimination against Catholics and a corrupt Liberal elite. The Tory movement of the 19th century was a response to the endemic corruption of the Whigs and their noble families; it saw the restoration of royal prerogatives, by a king who was above corruption, as in the best interests of the common man. It was corruption that concerned the early Tories, and it is corruption that is of fundamental concern today.
The Pulp Mill Assessment Bill contains passages, notably section 11 which remove the jurisdiction of the civil Courts. This has been described as unconstitutional. It has been suggested that some members of the Assembly voted for the legislation on the basis that they did not believe that s11 would be effective and that it would not be upheld.
The objective of s11 is to ensure that the Pulp Mill can be passed without verification of its health or environmental impacts, the actual impact could be much worse. The potential anarchy associated with the Courts giving literal effect to section 11 has already been described.
The duty of the Governor is to ensure the propriety and constitutionality of government. It is beyond doubt that the Governor has ‘reserve power’, including the power to withhold assent, the question is when ‘reserve powers’ should be properly used.
It has been said that if President Hindenberg had had the gumption to use reserve powers, the Weimar republic may have been saved from Nazi horror and the holocaust. In America, the constitutional authority of the executive to veto legislation is well recognized, it is also evolving, with the use of ‘signing notes’ to indicate the current Executive’s intent for the benefit of the bureaucracy and the Courts.
Australia’s constitutional system evolved from the British, but also adopts by design aspects of the American. It is also based on a charade, the charade of government by the Governor, which is in fact conducted by a Cabinet drawn from the legislature. The Westminster system has an unwritten constitution, relying on the absolute propriety of Ministers driven by the internal competition for promotion from an ambitious back bench. The short-comings in Tasmania’s case should be obvious: with so few Labor politicians, membership of Cabinet requires neither competence nor propriety; and the backbench is formed by Terry Martin and the Liberal party. The unwritten constitution is observed primarily in the breach.
The left has lived in fear of Reserve Power since the Whitlam dismissal. However, there were numerous examples of Governors in the British Commonwealth using reserve powers including the refusal of assent during the 19th and early 20th century to preserve constitutional order. In the 1860s Governor Darling of Victoria was recalled and replaced for failing to prevent the government circumventing a blocking of Supply. Thus there are circumstances when Governors have used their Reserve Powers and circumstances when they have been punished for failing to do so. This does not yet represent a juris-prudence on the use of reserve powers, but it is clear that they exist and that in the right circumstances they should be used. Appropriate circumstances seem to include unconstitutionality and the lack of an alternate jurisdiction for dispute resolution
Does a legislative attempt to exclude access to the Courts represent such a circumstance?
That is for Governor Cox to decide, as a former Supreme Court judge he is eminently more qualified to make the decision.
Signing the Bill while striking through s11 would leave no doubt as to his view on its constitutionality. This could then be tested by the High Court. If Parliaments aim was to enable the Premier to legislate one thing while doing another, or provide Gunns with legal immunity, they can always pass a Constitutional amendment with the required majorities to that effect.
Mr Hills suggests there may be a constitutional crisis if the Governor withheld assent: there may be a constitutional crisis if he does not.
Alex Wadsley
Posted by Alex Wadsley on 25/03/07 at 06:46 PMHere we have the Regional Forest Agreement being amended in February last month to deny protection for endangered animal and plant species.
[I’d like to see the actual text because I suspect this lack of protection also now extends directly to humans.]
Now we have pulp mill legislation that denies people the right to appeal if this proposed monstrosity poisons them. The evidence already points to this disaster occuring.
Our members of parliament are both sincerely ignorant and conscientiously stupid. But our civilisation has advanced, for we can now be killed in new ways.
Send the issue to to be settled by the Governor now. Clearly our Parliamentary system isn’t working.
“In the fight for survival, a tie or split decision simply will not do.”—Merle L Meacham
Posted by Brenda Rosser on 25/03/07 at 11:06 PMAs another engineer with mathematical rather than legal expertise I’d have to say that on the balance of probabilities G. L Hills sounds the most credible in suggesting that Governor William Cox will not breach 300 years of constitutional convention and withhold assent.
If he feels that he should (withhold) then he will do so with no need for lobbying from the rest of us. The existence of S.11 will not have escaped his attention. As the ex-Chief Justice he’s quite unlikely to read through a Bill (especially such a short one)and sign it without knowing what he’s doing.
I’m very disappointed in section 11 since removing rights of appeal is a moral outrage even if not legally unusual. This especially true since we are dealing with an enormous, untested project whose consequences may potentially be devastating to thousands of people. If you agree, or if you see any other weasel-like aspects of this Bill (and believe me, there are plenty) then spend a few hours lobbying the members of the Legislative Council who just might do something about it (as I’ve just spent 2 days doing).
The next step then is to get onto Turnbull and Garrett. If all this fails (and it well may, our Australian “democracy” being what it is)we can attempt to get it into the courts, somewhere, somehow.Posted by Neil Smith on 25/03/07 at 11:16 PMAlex, thank you for advancing this interesting perspective.
I suppose all I can say in response is, in relation to this argument:
[Alex Wadsley]: “Appropriate circumstances [to withhold assent] seem to include unconstitutionality and the lack of an alternate “jurisdiction for dispute resolution”
I’m afraid I can’t agree with that statement. You raise two grounds, unconstitutionality and “lack of alternate jurisdiction for dispute resolution”.
“Unconstitutionality” is a matter for the courts, not for the Governor. Vice-regents don’t withhold assent just because they suspect a court might hold the provision invalid and nor should they because they’d be usurping the role of the judicial arm and be in breach of the separation of powers.
I’m not entirely sure what you mean by “lack of alternate jurisdiction for dispute resolution” but I assume you’re referring to privative clauses. Again, determining the validity of a privative clause, just like determining the validity of any clause, is a matter for the courts under the doctrine of the separation of powers.
The only widely accepted reason, within the profession, for withholding assent is if to grant assent would facilitate the commission of a crime. [I thank a colleague for this.] Of course, I mean a crime in the legal, not metaphorical sense of the word and as much as some people might consider building the mill an environmental crime, it is not a crime known to law!
[Alex Wadsley]: “Does a legislative attempt to exclude access to the Courts represent such a circumstance?
That is for Governor Cox to decide, as a former Supreme Court judge he is eminently more qualified to make the decision.”
From what I wrote above, you can see that my suggestion is that that is a matter for the Supreme Court of Tasmania [and if necessary, the High Court exercising its appellate jurisdiction] to determine. Given that he is - as you point out - an eminently qualified jurist, my guess is that Mr Cox would decide how to act on the assent question according to law, in which case he would grant assent and let the courts decide.
[Alex Wadsley]:
“Signing the Bill while striking through s11 would leave no doubt as to his view on its constitutionality. This could then be tested by the High Court.”
It would be useful here and throughout all of the discussion here, to indicate clearly when we’re talking about the Tasmanian Constitution and when we’re talking about the Commonwealth Constitution.
My guess is that in relation to constitutional validity, you’re referring to Chapter III of the Commonwealth Constitution and the privative clause cases. As I alluded to in my earlier comment, in Plaintiff S/157 2002 v Commonwealth (2003) 211 CLR 476, the plaintiff argued that s 474 of the Migration Act 1958 was invalid on the basis that the section purported to oust the jurisdiction conferred upon the High Court by the Constitution, s 75(v). That case concerned prohibition, mandamus and certiorari under the original jurisdiction, whereas we are concerned here with the appellate jurisdiction (s 73) but the relevance of Plaintiff S/157 2002 is more in what it said about construction of privative clauses and severance and reading-down. In dealing with potential invalidity, the High Court will usually attempt to read down a suspect provision and then, if necessary (and possible), sever an invalid provision to leave the rest of an Act intact. In Plaintiff S/157, the Court said that at least in the case of Commonwealth legislation, a privative clause will be construed strictly. It’s worth bearing that in mind here because if it ever became necessary, the High Court would likely read down s 11 of the Pulp Mill Assessment Bill.
Continued next post ...
Posted by G. L. Hills on 26/03/07 at 02:31 AM... continued:
Now, on to s 11 of the Pulp Mill Assessment (PMA) Bill and its relationship to Chapter III of the Commonwealth Constitution.
The High Court’s original jurisdiction is this:
“In all matters—
(i.) Arising under any treaty;
(ii.) Affecting consuls or other representatives of other countries;
(iii.) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
(iv.) Between States, or between residents of different States, or between a State and a resident of another State;
(v.) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth”
And of course, the High Court’s appellate jurisdiction under s 73 extends to appeals from state Supreme Courts.
What s 11 of the Pulp Mill Assessment Bill does is, notwithstanding the provisions of any other Act, to remove rights to appeal to a court in relation to an action, decision, process, matter or thing arising out of the Pulp Mill Assessment Act itself.
An appeal in relation to an action, decision, process, matter or thing arising out of the PMA Act DOES NOT fall within the original jurisdiction of the High Court.
And nor is it going to fall within the appellate jurisdiction because if the right to appeal to the Supreme Court of Tasmania has been removed by the PMA Act, then there will be no appeal lying to the High Court under s 73(ii) because there will have been no judgment, decree, order or sentence from the Supreme Court of Tasmania in the first place.
The only conceivable judgment, decree, order or sentence from the Supreme Court of Tasmania would arise from an exercise of its inherent jurisdiction and the PMA Act does not purport to limit a right to appeal such judgment, decree, order or sentence because it would not be an “action, decision, process, matter or thing arising out of this [i.e., PMA] Act.”
In summary, s 11 of the Pulp Mill Assessment Bill [if enacted] would not be invalid for purporting to oust the jurisdiction of the High Court of Australia under ss 73(ii) or 75 of the Constitution.
[I emphasise again that nothing here should be taken as the expression of an opinion on the substantive merits of Gunns’ pulp mill proposal.]
[For liability reasons, I must state that this comment is not provided as legal advice and is not warranted as to completeness or accuracy.]
G. L. Hills
Posted by G. L. Hills on 26/03/07 at 02:48 AMCan somebody please explain why the UN Charter of Human Rights doesn’t apply?
Article 7.
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.Article 8.
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.Article 21(2) Everyone has the right of equal access to public service in his country.
The actions of the Lennon government appear to entirely breach these articles.
Posted by Mike Bolan on 26/03/07 at 10:47 AMNow I’m confused. Can this legislation be challenged in the Supreme Court of Tasmania or the High Court?
Posted by David Mohr on 26/03/07 at 12:21 PMI suspect neither, David—because it can’t be taken to the former, it wouldn’t be eligible for the latter. I think I have that right.
It gives further lie to the Premier’s claims that ‘this pulp will benefit all Tasmanians’ etc etc. Unless you get a bit crook, have to give up work, dioxin poisoning is found to the cause and you want to sue someone over it. No chance.
All’s fair in love and goverment, eh?
Posted by Cameron on 26/03/07 at 01:00 PMI must thank Mr Hills for his contribution; now lets review some of the logic.
1) The Governor need not review the legislation for its constitutionality because that can be done by the Courts
2) The High Court cannot review the legislation because of lack of original jurisdiction (barring the fact that the PMA Bill purports to reflect the Stockholm Convention) and the Tasmanian Supreme Court will be unable to provide a judgement which could then be appealed.
3) The Tasmanian Supreme Court cannot review the legislation (or actions under it) because of S11.
This would seem to confirm the naive view that the objective of s11 is to place the legislation outside of the jurisdiction of the Courts. If we take the separation between the three powers as a consitutional principle, then this is unconstitutional and the Governor, in striking out s11 would not be usurping the Courts power, but protecting them from usurption by the legislature.
While the view of a Tasmanian barrister and political commentator (amongst others) may be that withholding assent is only to prevent commission of a crime [while noting that the Lennon-Gunns actions have the appearance of s297 conspiracy to ‘cheat’ the public of their right to public participation and that a failure to effectively review the health impacts of such a massive project is manslaughter], the most recent Canadian cases where assent has been with-held (by Governor Bowen of Alberta in the 1930s), were on the basis of non-constitutionality, and the decisions (with respect to non-consitutionality) were then upheld by the Canadian Supreme Court and the Privy Council.
The exercise of Reserve Powers is inherently political or ethical rather than judicial as it is to preserve the constitutional balance between the 3 branches (and two houses) rather than become a new platform for the exercise of judicial authority. If it is said that reviewing ‘Constitutionality’ is the purview of the Courts, then the Governor should act to ensure that the Courts are capable of carrying out that function (your analysis suggests that they would not).
I can agree that if the Governor did strike out s11 the first point of review would be the Supreme Court of Tasmania, followed by the High Court, my point was that the High Court would retain the role as the final arbiter of Constitutionality, rather than there being any risk of return to an arbitrary royal autocracy of pre-1688 and all that.
The relative paucity of historic Governors feeling compelled to use ‘Reserve Powers’is a testament to the role of the second chambers, such as the Legislative Council, to act as the ‘conscience of the Monarch’. Hopefully they will find such strength tomorrow.
[Please note, I am not a lawyer, and this is an ethical rather than legal opinion]
Posted by Alex Wadsley on 26/03/07 at 01:42 PMI read in the exaggerator that peter garrett supports this filthy pulp mill.say it aint so joe.im now in the process of melting my midnite oil records into ashtrays and giving them to the kids for frisbees.he has sold out a generation of believers,he showed his true colours when he joined the suits.
Posted by crud on 26/03/07 at 01:49 PMAm not sure quite what it is that G. L. Hills is trying to acheive.
He has given us reams of a perverse legal narrowism based on a species of plausible deniability, prostituted into the service of vested interests. But nothing written relates to the REAL situation.
Other contributors, including Prof. Wadsley, have successfully demonstrated that all the legalese operates for is as an apparatus for the direct refutation of natural justice.
In denying presentation of evidence and allowance of legal recourse, based on evidence, reasoned dissent is curtailled and opportunities for the revelation of the truth of the matter are denied premeditatedly for the most perverse of reasons.
The underlying principle of law as servant to justice is utterly reversed and denied.
What we have here is an environmental tragedy and a constitutional rape equivalent to the David Hicks travesty.“They are as wolves in sheep’s clothing”
Posted by paul walter on 26/03/07 at 04:22 PMHas the text of the Tasmanian Regional Forest Agreement definitely been changed? I’m referring to The Examiner and the Mercury articles of February this year referring to the Federal and State Governments changing of the meaning of the word ‘protect’ to mean precisely what the Governments ARE SAYING IT MEANS from now on.
But I’ve been unable to locate the supposed new text. (?)
If they have done what they have said they would then this must surely mean also that the courts are excluded from participation on any disputes to do the protection of the environment in the ‘forest’ industry. Issues of Constitutional breach must arise here also. Importantly such action must surely be a breaching of international law again - the Stockholm Convention AND the Biodiversity Convention. Perhaps also the Convention on the rights of the child.
See: RFA changes skirt Wielangta court ruling
http://www.examiner.com.au/story.asp?id=386254
and
Logging turned legal. Late Feb07
http://www.news.com.au/mercury/story/0,22884,21277796-5007221,00.htmlPosted by Brenda Rosser on 26/03/07 at 06:18 PM26. To amend the Act it requires a bill to pass through both houses of the Australian parliament.
Hoewever it is not to say some administrative instrumentt has not been inserted into the RFA Tas 1997.
Were the bill to get to the Governeor then in defence of a number of prcepts about how a modern democracy should work to protect minorities then I would favour the solution offered in post 23. for the reasons given.
However failing that a case on the failure of the bill in relation to Australia’s international treaty obligations [the foriegn affairs powers of the Commonwealth] and in this case it is covered by the powers in relation to corporations that Act across State boundaries. To wit Gunns Ltd.
And then the High Court may find itself involved due to one of those pesky Gunns shareholders who is a resident of another State.
I am not satisfied that it is doen and dusted regardless of the cleverness of the drafting. The beauracracy must have had this S11 in the draw for some time and have trotte tit out in desperation knowing it may be legal but would stink badly as post 25. states.
Post 22. “Unless you get a bit crook, have to give up work, dioxin poisoning is found to the cause and you want to sue someone over it.”
And then take the cas against the litigous Gunns Ltd and whilst suffering the impacts find the doe and then win. Terrific. And the prize is some money for your trouble.
Perhaps, just perhaps the mill would, if that came about, have toclean up its Act.
However, under S11 thew Satet of Tasmania would be absolved of any cost in relationn to such an occurance. Neat eh.
Answer Yes Minister
Posted by phill Parsons on 26/03/07 at 10:30 PMIn response to post 25 (“What is G. L. Hills trying to achieve”)I suppose he’ll shortly speak for himself, but I think he’s just trying to give those of us who are prone to get hopeful (and wildly inventive) at times like these a needed lesson in what the limitations of the law actually are.
The law has never fitted perfectly with “ethics” or “justice” (whatever they really are), but neither has it been totally unrelated. The law is not god-given but merely (like Parliament) another human institution. I’m normally quite a cynical person but I’m still willing to believe that at its core the law is designed (inasmuch as any constantly-evolving human endeavour is “designed”) to make our lives better. I’m fairly sure I’d rather have it than not have it.
Sometimes of course it goes wrong in a big way (the US Supreme court decision of the 1880s to give corporations the legal rights of a person being a prime example). The doctrine of precedent has ensured that we’ve had to live with this outrage ever since, but this same doctrine has often produced some quite pleasing decisions on the side of fairness.
If we can live with its limitations (and we don’t really have a choice) we can also take advantage of its opportunities. These opportunities might look a bit thin right now as we consider the Pulp Mill Assessment Bill, but it’s worth remembering that it was the functioning of the law that stopped Robin Gray damming the Franklin. And the Wielangta decision of last December was a triumph for the proper working of the law as well as for Bob Brown. I don’t believe we’ve heard the last of that. As much as Lennon and Howard or Turnbull might want to redefine the word “protect”, I can’t see the courts ultimately agreeing with them.Posted by Neil Smith on 26/03/07 at 10:37 PM[Mike Bolan asked]: “Can somebody please explain why the UN Charter of Human Rights doesn’t apply?”
An international treaty or other instrument that has been signed and ratified by Australia is not part of Australian domestic law until it is incorporated into domestic law by the enactment of legislation specifically designed to give effect to the relevant international obligations: Simsek v MacPhee (1982) 148 CLR 636; Dietrich v R (1992) 177 CLR 292; Re East; Ex parte Nguyen (1998) 159 ALR 108.
An individual has no action before domestic courts for breach of a treaty in the absence of domestic implementing legislation: Tasmanian Wilderness Society Inc v Fraser (1982) 153 CLR 270.
The validity of domestic legislation is not dependent on its consistency with international law: Horta v Commonwealth (1994) 181 CLR 183.
But in any case, Articles 7 and 21(2) of the UDHR are not relevant to the matter being discussed. (The terms ‘equal protection’ and ‘right of equal access to public service’ have specific legal meanings in international jurisprudence). Article 8 is the one relevant to the matter being discussed here and then only vaguely so. The International Covenant on Civil and Political Rights is more relevant; however, the qualifications I discussed above still apply.
[Paul Walter wrote]: “Am not sure quite what it is that G. L. Hills is trying to acheive. He has given us reams of a perverse legal narrowism based on a species of plausible deniability, prostituted into the service of vested interests. But nothing written relates to the REAL situation. “
(A): Understanding what the law actually is is a pre-condition to effective political activism and advocacy about what the law should be.
A scenario involving the Governor withholding assent is not “the REAL situation”, it is fanciful.
(B): In relation to Mr Walter’s defamatory allegation that I am “prostituted into the service of vested interests”, I wish to declare that I have no financial interest whatsoever in any entity, public or private sector, in the State of Tasmania.
Posted by G. L. Hills on 26/03/07 at 10:54 PM
