Tasmanian Times

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Bob Brown has fought long and hard for this state. It is unsurprising though that the government has chosen any means to hand to try to deal with him. Which does show they are very aware of how important he is. He must make them very nervous. Um, um, ah - now who does that remind me of?

Posted by salamander on 08/06/09 at 09:41 PM
Good. The headline-chasing jerk has been there long enough, anyway. His stupid press release last week shows how out of touch with reality he is, and how much better off the parliament would be without him. We will be on standby to turn off every electronic device in order to avoid all the bullshit that will fly when the point of his departure actually arrives. Still, it will be worth it to be rid of him.

Posted by woodworker on 08/06/09 at 10:43 PM
Here you see the full moral majesty of Barty’s regime, moving to eliminate a major part of what’s respectable in Tassie politics through their control of the legal system. Remember that the government/FT defeated this environmental action on appeal after amending the legislation on which Brown won the original judgment.

John Hayward

Posted by john hayward on 08/06/09 at 10:44 PM
Well, that finally does it for me.

I now perceive the Tasmanian government, and its Forestry Tasmania, as Enemies of the People.

Posted by Peter Bright on 09/06/09 at 03:45 AM
At last we have FT and the government sticking to due process! 30 (odd) days to pay before bankruptcy proceedings.

It does remind me of the PTR legislation that allows 28 days from the date of Public Notice publication to lodge an appeal. I, on behalf of several Lucaston residents, sent a letter to each local MP requesting their position on the PTR legislation within 28 days. There were no responses.

I guess the timeframes were too tight.

Posted by Mark on 09/06/09 at 08:00 AM
John (#3) , you need to know:
1. The amending Act was FEDERAL Legislation (passed by the Howard Government) in 2006
2. The whole case, at first instance, and on appeal, was prosecuted in the Federal Court of Australia.

There is nothing in the decision and appeal which suggests that “control of the legal system” was the determining factor or a factor at all, with respect, that is just a silly comment unrelated to the questions determined in the case.
Even on the political front, the then Federal government claimed that the original decision was an unintended consequence of the drafting of the original legislation. Again, it was a political decision, well deserviong of criticism if anyone disagrees with it, but not something involving the judiciary, state or federal.

Posted by Ross Hart on 09/06/09 at 08:19 AM
Hear Hear! Peter Bright. FT/Gunns and their lieutenants in Government are a malignant cancer in Tasmania. The tragedy is this cancer is entirely curable but we are forced to watch while the state sinks and its ‘immune system’ is compromised again and again. It’s a long slow agonising lesson in subjugation that, it seems, the few who can see what is happening are powerless to stop.

Posted by emily on 09/06/09 at 08:26 AM
You have got to be kidding. Of course Brown has the funds - this is simply a money spinning ploy. Poor senator in risk of loosing his seat, please all Green supporters roll out your cheque books. I’m not sorry, he gambled and lost. Nothing to do with the Government nor in reality Forestry Tas, The courts decided how much was to be paid and when it was due.

Posted by francis on 09/06/09 at 08:58 AM
The depths of infamy are common ground for thr proponents of Tassies slaughter industry.
I find it difficult to conceive that this State has such a dyed in the wool rabid minority that boast such a hateful countenance toward the preservation of our State.
There is so much factual information about us today, fully confirming that evidence of the repugnant allocation of taxpayer benefits continues unabated to such hostile anti the people business entities such as Gunns Ltd and Forestry Tasmania.

If we look at the state of play in Somalia for example, there are elements of the same in this State, though the pirates here are land-borne rather than sea-borne.
Those people that support such a rabble of conspiracy, at some stage of their lives, will more than likely follow their leaders into the soul-less dungeons of infamy.

What sort of fools support such a money-grubbing, reckless band of hostile controlling red-neck forest destroying desperadoes?
Perhaps woodworker (comment #2) is an example of what goes on in the minds of such types of person?

Posted by William Boeder on 09/06/09 at 09:13 AM
Ah woodworker, as reliable as always, resorting to personal attacks for lack of reasoned, factual points of argument.

I note with bemusement the anti-green slogans stuck to the back of Hilux utes which promote shooting greens, dozing greens, name-calling of greens and claims of green lies, all without a modicum of truthful fact to back them up. Bully, bully, bully - the only tactic they understand, because there does not seem to be the brainpower to present an actual argument for their case.

Could it be that there actually is none, and that Bob Brown is so annoying to you because not only does he present sound arguments but more importantly solutions, including the call to restructure Forestry into a sustainable, profitable enterprise that will actually create jobs and preserve remaining old forests (not the WHA buttongrass that FT claims as “locked-up” old-growth forests) and endangered wildlife, rather than the inept management that is currently unable to turn a profit and is shedding jobs like dandruff, all the while mindlessly stepping up the destruction of Tasmania’s old forests and unique wildlife in a futile attempt to shore up their bottom line by providing base-value goods to a market that doesn’t want them anyway?

Posted by Amy Broadbent on 09/06/09 at 09:14 AM
It won’t solve the immediate problem, but this case illustrates an important issue with the legal system that ought to be redressed. The law assumes that everyone initiates legal action in the hope of financial gain. That’s why legal costs are awarded against unsuccessful parties - it’s all part of the commercial give and take of litigation. But Bob Brown did not bring this court case with any hope of financial gain. Rather, it was in the public interest that the issues he raised be determined authoritatively by the courts, lest there be covert resentment about the untested legality of the Wielangta logging. The rule of law needs this kind of challenge to be available, and not financially prohibitive. With public interest litigation of this kind, especially a case with real merit (Bob Brown succeeded at first instance, and none of the findings of fact were disagreed with by the higher courts) it makes more sense for the public authorities called into question to bear their own costs.

Posted by Brian Walters SC on 09/06/09 at 09:40 AM
Bob losing his seat? Wouldn’t that mean Andrew Wilkie would be elected to the Federal Senate on the subsequent recount?

Posted by Peter G on 09/06/09 at 10:03 AM
Bob Brown has more courage, more determination, greater insight, greater care, greater connectedness and greater interest in the ethical and values based preservation of, and future successful development of Tasmania’s core assets (its land/ place and species) than many many many others.

The media are revelling in this and providing him with great a great forum and theatre. There is nothing that can be done to make this a cause for Forestry. No matter what happens - Forestry remains what Forestry is - a facial tumor on the landscape and in many cases the society of Tasmania.

Posted by Richard Butler on 09/06/09 at 10:11 AM
At the end of the day - all they are doing to its statesmen are what they do to its trees.

They leave the scrappy scrub to rot in the ditch - and focus on those who make a contribution.

Rest assured Woodworker - youre safe.

Posted by Richard Butler on 09/06/09 at 10:13 AM
The Green hatred evident on this page as well as in the Mercury comments pages makes me wonder what these people fear. Throughout history, those who speak the truth are the most feared and despised. There are few politicians in this country who are prepared to put their jobs (and cash) on the line for what they believe in. This can only be admired.

Posted by Duncan Grant on 09/06/09 at 11:31 AM
What kind of democracy are we living in?
The sort of democracy where the Tasmanian government and its logging arm - Forestry Tasmania acts as the deputy sherriffs for Tasmania’s big woodchipper.

Lets not forget that the reason why Bob Brown finds himself in this predicament.
It is because the Tasmanian woodchip industry threw a tantrum after Brown, funded and won a court case against the Tasmanian and the federal governments proving that under their own Regional Forest Agreement logging in the Tassies wielangta forest was illegal.
The ruling potentially threatened the way forests are logged in Australia.

Justice Marshall decision was a watershed and it rightly upheld the intent of the EPBC by finding that logging in the Wielangta forest was illegal as it threatened the survival of endangered species, including the Tasmanian wedge-tailed eagle and the swift parrot.
Pretty straight forward stuff!
But Remember what happened next?
Despite the Federal courts ruling, Paul Lennon and John Howard who were clearly not the least bit concerned about enforcing laws to protect threatened species, just decided they would rewrite the law to protect the interests of Tasmanias logging industry.
And the logging industry complain to the ABC they are the victims of Bias??
The result of Browns appeal to the high court though split, was fairly predictable.
It ruled that Howard and Lennons RFA rewrite overrode Justice Marshall’s original judgement.
So now the Tasmanian government and their logging industry mates are trying to send a Tasmanian Senator broke and as a consequence see him removed from the Federal Parliament?

Will it happen? Of course not.
Is Bob Brown getting political mileage from it? You betcha.
Very clever by Senator Brown and not a good look for Forestry Tasmania. Browns appearance last night on Channel tens Good news week was beautifully timed along with the news item on tens late night news. The breaking of this story has been well managed so far and the donations will no doubt be forthcoming.
For FT and the Tasmanian government this episode just reenforces FT’s sleazy anti-environment image.
Wake up Tasmania and ask yourselves, who is running this state?

Posted by pilko on 09/06/09 at 11:33 AM
I find Ken Jeffery’s comments on this - as reported by AAP - absolutely extraordinary. Since when have public servants been able to make derogatory remarks like his about members of parliament. As they say in the classic, it would never have happened in my day! But those values now seem so far away. Perhaps Ken’s zeal is to compensate for those other public servants handing out documents along Macquarie Street.

Posted by nudger on 09/06/09 at 11:53 AM
Woodworker! Lovely to hear from you again.

Fair enough Bob Brown should pay his bills and I have no doubt that the bill will be paid forthwith. I wonder Woodworker, if you could tell us how much 240,000 dollars is as a percentage of the free money every Tasmanian taxpayer has given to Gunns Limited and the CFMEU as a subsidy for their wounded duck of an industry in the past few years?

Just asking. If we are talking about people paying their bills.

Posted by Chad C Mulligan on 09/06/09 at 12:17 PM
Well i have never been a great supporter of ALL BOB’s idea’s on how to run a country and I feel certain that he should be able to meet this huge bill, on the other hand no one can deny that he has always fought hard for his beliefs regardless of personal bias ,and if in fact it should be the case that he may lose his seat ,I feel sad that not one post this place has made any suggestion as to whether he “MAY JUST” need a helping hand financially, and if he pulled the plug and retired to his hideaway and said F—-k it all ! I gave it my very best , good bloody luck to him ! as for you “George Harris” what a “miserable excuse for a human being” you are.

d.d.

Posted by don davey on 09/06/09 at 12:54 PM
George Harris alias “Woodworker”, I always wished that I had existed in the Victorian era when it was legal “or considered so by gentry” for pistols at dawn ! and were this so , you can consider your ugly face soundly slapped.

d.d.

Posted by don davey on 09/06/09 at 01:05 PM
From Crikey today:
By Bernard Keane
Howard’s dead hand behind the Bob Brown bankruptcy scare
The possible bankruptcy of Greens Senator Bob Brown as a consequence of Forestry Tasmania’s demand for legal fees would be a victory from beyond the political grave for Paul Lennon and John Howard and a big win for the Tasmanian Government’s efforts to stymie scrutiny of its forestry practices.

Brown needs to find over $239,000 by 29 June or face bankruptcy proceedings initiated by Forestry Tasmania’s lawyers Page Seager. Under the Constitution, Brown would be forced to give up his Senate seat if declared bankrupt, leaving the choice of a replacement in the hands of the Tasmanian Government.

The legal saga surrounding logging in the Wielangta Forest is lengthy and complicated (the Senate Environment committee has an excellent summary) but revolves around a simple fact: John Howard and Paul Lennon changed the rules after Brown won in court to nullify his Federal Court win over Forestry Tasmania.

Brown took Federal Court action in 2005 to prevent logging in the Wielangta Forest north-east of Hobart. Brown’s case centred on the interaction of the Environment Protection and Biodiversity Conservation Act 1999 and Regional Forestry Agreements which allowed states and logging companies to avoid the impact of the EPBC if the Agreement provided for protection for significant species.

Brown argued that logging in the Wielangta Forest was not in accordance with the protection measures described in the relevant RFA and therefore the protections of the EPBC — in essence, that logging needed Commonwealth approval — applied. In December 2006, Federal Court Justice Marshall awarded a comprehensive victory to Brown, declaring that there was evidence the logging was harming three major protected species (the Tasmanian wedge-tailed eagle, the broad-toothed stag beetle and the swift parrot) and that the relevant protective measures, based around a reserve system, did not comply with the RFA clause.

Forestry Tasmania immediately appealed and nearly a year later, three Federal Court justices rules that the mere existence of a reserve system was sufficient to meet the requirements of the RFA, regardless of whether the reserve system actually protected any species or not. Marshall’s findings that the logging had damaged the three protected species still stood (and stand).

Brown appealed to the High Court, but by then John Howard and Paul Lennon had conspired to remove the basis for the legal action. On 23 February 2007, Howard and Lennon had agreed to amend the relevant RFA so that the clause.

The State agrees to protect the Priority Species listed in Attachment 2 (Part A) through the CAR Reserve System or by applying relevant management prescriptions was removed and replaced with a simple statement that the reserve system protected threatened species. In effect, Lennon and Howard were agreeing that black was white. There was no Parliamentary scrutiny in either the Commonwealth or Tasmania of the amendment.

The High Court refused to grant Brown special leave to appeal because the new clause meant he had little chance of success. It refused to award costs against him, but Brown was still left the bill from the Federal Court appeal hearing.

Forestry Tasmania is owned by the Tasmanian Government and has close links with logging company Gunns. Gunns unsuccessfully tried to litigate Brown and other environmentalists out of the forestry debate with a punitive lawsuit that has progressively collapsed, although the company is still pursuing seven individuals.

The Forestry Tasmania action, however, is a different matter. This is the Tasmania Government pursuing Brown for daring to beat it in court to such an extent that it changed the rules to ensure victory.

Brown has launched an appeal for donations.

Posted by kate on 09/06/09 at 02:50 PM
Bob won his case, fair and square according to the law of the land. Lennon and Howard then signed an agreement which changed the RFA, and then the appeal against Wielangta was lodged. Brown lost and gets slugged with a bill - all because Lennon and Howard moved the goalposts after Brown had won the case.
You can’t respect that sort skullduggery unless you belong to the Machiavelli brigade.

Posted by Garry Stannus on 09/06/09 at 03:28 PM
Wait a minute. The public has already paid Forestry Tasmania, the public has paid for the Courts, the public has paid Bob Brown.

By what mechanism should any of these parties pay this money all over again?

Posted by Mike Bolan on 09/06/09 at 04:00 PM
Losers paying costs is there to help prevent spitefully taking people through court. You have to be confident you will win before you engage the system, or it will cost you. And so it should. Not as this article says “The law assumes that everyone initiates legal action in the hope of financial gain. That’s why legal costs are awarded against unsuccessful parties - it’s all part of the commercial give and take of litigation.” Legal costs are awarded because if you waste my money making me defend myself in court, that is your fault.

Posted by Gillsy on 09/06/09 at 04:08 PM
(22)

I pinched a little of your post Garry ,in regards to the following which I have sent to all twenty or so newspapers in my address book and hope that others will do similar action.

Attention Kevin Rudd !
I’m no slavish follower of ” Bob Brown” however he won his case, FAIR @ SQUARE according to the law of the land, and for a cause that has a huge effect on the worlds climate change.

Lennon and Howard then signed an agreement which changed the RFA, and then the appeal against Wielangta was lodged. Brown lost and gets slugged with a bill - all because Lennon and Howard moved the goalposts after Brown had won the case.

If this is the behaviour we can continue to expect from this JACKBOOT Tasmanian Labor Govt , in allowing this to take place , then we had all soon start learning how to raise our arms , calling , “SIEGE HEIL” and I call upon this federal Gov’t to step in and stop this malicious action.
Don Davey
32 eardley st
Launceston
Tasmania

Posted by don davey on 09/06/09 at 04:38 PM
Glad the donations are flowing in for Bob. Mine will be too when I can find out where to send it. Talk about a travesty of justice!!! There was nothing in this challenge to benefit Bob Brown - he is driven by his principles - to stop the continuing devastation of our forests and the consequent threats to the wildlife that depend on them. He’s always been at the top of my list of truly great people - and always will be.

Posted by Maddie on 09/06/09 at 04:49 PM
Brian Walters SC raises what I regard as an independent perspective with current litigation in the Australian Public Service. Commonwealth departments have, for some years, funded challenges to the interpretation of an Act of Parliament right through to the High Court. This has been seen as a fair and just approach to clarify the law.

Tassie should catch up next century.

Posted by Mark on 09/06/09 at 04:52 PM
Remember also John Gay’s response to the court ruling when Bob Brown won the case.
Gay said ” Well the government will just have to fix it won’t they”
And guess what they did, they fitted a V8 motor on the goal posts to make sure that no one could ever get a goal against them like that again.
Surely there should be a law against changing laws and then running a trial again on the same matter. This is like changing the speed limit after you have gone through the area then fining you for speeding.
I applaud Bob for his conscience and his ability to stand up for what he thinks is right.
We need more people like him in parliament.
I hope he gets the money and much more to fight on.

Posted by Pete Godfrey on 09/06/09 at 05:47 PM
Woodworker - George Harris - is a pillar of this community. Whenever I am feeling a little down in the dumps and in need of some comedic stupidity - I just have to open up Tasmanian Times and in a few moments Im rolling around almost wetting myself.

WW - Youre an absolute pisser - dont ever stop - we’d all have to find something more ridiculous to go laugh at. And it would take decades to find - and you give it all up - for FREE.

Youre a Premier in waiting.

Posted by Richard Butler on 09/06/09 at 06:07 PM
Great work Kate. Correspondents to this website should speak out loudly in defence of Brown on this. Brown has ended up on the wrong end of the law but so do many who hold the moral highground. It should be patently clear to any intelligent, fair-minded Australian that this whole wielangta case stinks to high heaven and as crikey rightly argues, the law has been exploited by the political mates of the Tasmanian logging industry to the detriment of Bob Brown and nature itself. That Eric Abetz can defend the logging industry on claims that they are a victim of bias from the big and powerful ABC yet remain silent on the morally bankrupt actions of Forestry Tasmania says so much about the bias of Abetz and his pet woodchip industry. That the cleanskinned pharisee Abetz is such a friend and ardent defender of Australias grubbiest industry also tells us much about the true nature of this politician.
History will rightly teach the children of these grubs that once upon a time one company in Tasmania always got it wanted, even when it was morally wrong, just because it had lots of money and friends in high places.

Posted by pilko on 09/06/09 at 06:41 PM
Far above the policy quibbles that Brian Walters alludes to, there are the more fundamental jurisprudential issues of a litigant ( Tas govt) changing the law in pursuit of its own ends, and of the executive branches at both state and federal levels usurping judicial powers.

If we had any significant principles enshrined in the Australian Constitution, such as in a Bill of Rights, they would have crashed down on the dense skulls of Lennon and Howard in this one.

John Hayward

Posted by john hayward on 09/06/09 at 08:06 PM
Yes, I know Pilko, but someones got to pay for it.
The modus operandi of Forestry (et al) is a totally separate issue, and will hopefully be dealt with accordingly, and soon.
It might be argued however, that Bob knew full well that his Senate seat was in no danger at all. He is a popular politician ... a loved man. Did you see him on ‘Good News Week’ last night? Did you hear the applause at his every word?
Although I don’t believe in all that Bob says, I believe in Bob as a man, and he proves time and time again that he knows what he’s on about (Peter Garrett and Penny Wong take note). In short, as a fighter for our kids, I trust Bob.
This said, I also believe in Senator Abetz ... for his belief in an economically sustainable Tasmania. A place where our kids might stick around to enjoy the fruits of Bob Brown’s (and other’s) efforts.
So where does the answer lie, if not in dichotomy? Surely not a Liberal/Green coalition!?

Posted by Sos on 09/06/09 at 09:29 PM
Wayward is wayward again - #3 is wrong or at least misleading. pilko in #16 makes the same mistake as does Garry Stannus in #22 and I doubt those three are the only ones who have it wrong. It’s a complex matter but it is possible to wade through all the cases and see what actually happened.

The overturning of the original case on appeal was nothing to do with the amendment to the law made following the original case.

The overturning was with reference to the law as it stood when the original case was heard.

The appeal court found that RFA forestry operations were not subject to the EPBC Act and never had been. So let’s not pretend that Marshall J’s original finding reflected the law as it stood at that time. That finding is overturned.

The finding that does reflect the subsequent change in the law is the High Court’s denial of leave to appeal the overturning. So what has happened is:

* Marshall found that logging in the areas violated the EPBC act.
* His finding was overturned on appeal.
* The overturning now cannot be appealed because the High Court has ruled that such an appeal is not worth hearing given that the laws have been changed, so that even if the original finding was reinstated, it would have no new effect.

Notably when Brown sought leave to appeal the overturning he was not required to pay FT’s costs even though his application failed.

Amy (#10) - can you produce any evidence that FT claims buttongrass to be locked-up forest? Seems like you might be having trouble telling rainforest from buttongrass from that comment.

Brian Walters SC (#11) points out that “none of the findings of fact were disagreed with by the higher courts”. This is true but the appeal judges found that a great many of the findings of fact made by Marshall J were irrelevant to the determination of the case and furthermore criticised him for determining those issues at all. Likewise those findings of fact were not relevant to the reasons for upholding FT’s appeal, or the reasons for declining Brown the right to appeal the appeal result, so the lack of overturning of a great many of Marshall J’s findings is irrelevant at best.

Another question is the issue of payment for cases brought in the supposed public interest as opposed to for profit. I do not agree that discouraging profiteering is the only reason to apply costs. Gilly (#24) is correct - protecting respondents from having to pay fees for unsuccessful cases brought against them in the supposed public interest is another important factor. Furthermore allowing such cases to be brought without costs being awarded against the unsuccessful party just encourages more of what I have half-jokingly referred to on another thread as SLAGPs (Strategic Lawsuits Against Government Participation) - court cases brought to cost the government money and obstruct and intimidate government processes. Or change the G to a C (for Corporate) for the same result.

Peter G (#12) - no, as the Senate system does not employ recounts for casual vacancies; the Tasmanian Parliament would appoint a Green to serve as Brown’s replacement.

Posted by Dr Kevin Bonham on 09/06/09 at 09:59 PM
I can understand Forestry Tasmania’s need to chase this money down as quickly as possible.

With losses of around a million dollars a week, this hollow victory could see FT’s losses swing 0.5% toward the black. This would be the most significant turnaround in the financial operational income that FT has seen in a long while and would represent a crowning glory in the management of our iconic forests.

Posted by Dave Groves on 10/06/09 at 06:13 AM
Hello Kevin

You state “The appeal court found that RFA forestry operations were not subject to the EPBC Act and never had been.”

Just wondering how you feel about this? What protection does this give threatened species?

Posted by David Mohr on 10/06/09 at 08:08 AM
If David Bartlett had any integrity or moral conscience he would intervene and correct this gross miscarriage of justice by ordering Forestry Tasmania to withdraw their punitive demands.

And Eric Abetz, as prime perpetrator of this oppressive change to the law, should be tried for his duplicity in circumventing the original Court decision.

Posted by Malcolm on 10/06/09 at 08:47 AM
33# has the usual spin. A more comprehensive analysis is that of Bernard Keane reported by kate in 21#, with a far greater interpretative accuracy.

Posted by Peter Henning on 10/06/09 at 10:11 AM
Kevin, it is not me who is having trouble differentiating old-growth rainforest from button grass plains, it is Forestry Tasmania who is (deliberately) having the problem.

Forestry continually maintains that “over 80% of Tasmania’s old-growth forest is locked away for good” and “over 1,000,000 Ha of old-growth forest is locked away”. Clearly from those percentages and areas, most of the forest they refer to is that which falls within the WHA and National Parks in Tasmania. Given Tassie’s overall size of about 6,000,000 Ha, there is no other conclusion possibel, given that 80% of the original old-growth forest at time of European settlement has already been cleared.

Since FT started its spin campaign, Google Earth has updated the satellite imagery of Tasmania, and it is as clear as day with these higher resolution images as to how much of that area is simply not forest of any kind. It is equally clear how well the WHA boundaries follow the treeline of the tall forests, excluding most of them (other than the most remote and inaccessible) from protection.

As well, FT’s continued assertion that “90% of the Upper Florentine Valley is not available for logging” can be similarly confirmed to be that this is primarily because most of that valley is tea-tree & cutting grass scrub along with swamp and button grass. In fact most of the forest that exists there that is suitable for logging is not protected at all, is very much “available for logging” and is already neatly divided into planned logging coupes, which can be confirmed through FT’s own maps.

The assumption can logically be drawn that if FT can brazenly lie or mislead about these things, then the extrapolation of this to the rest of the areas under their control is entirely reasonable.

Finally, please ask FT themselves as to their definition of “old-growth forest”. Their answer is, (according to the RFA definitions), “undisturbed forest” (burnt forest is classified as “disturbed”). Ask further what the definition of “forest” is, and the answer is “trees”. Ask for a minimum requirement for what defines a “tree”, and you’ll discover that FT does not have a minimum height, girth or species requirement in that definition. So they can say, with a perfectly straight face, that undisturbed tea-tree scrub or buttongrass plains with stands of alpine scrub are “old-growth forest”, according to their interpretation of RFA definitions.

Sadly, they are not forthcoming with these explanations in their continual barrage of advertising spin, which not only never mentions the word “woodchip”, but also plays on the general perception that “old-growth forest” refers to temperate rainforest comprising tall eucalyptus upper storey with myrtle & sassafras middle storey and a ferns, mulch and moss-covered floor.

So let’s stop pretending that FT cares about anything other than how quickly it can render the whole of Tasmania into one big monoculture tree farm with no “old-growth” left for those pesky greenies to get passionate about and so inconvenience the production of woodchips with their “illegal” protests.

Posted by Amy Broadbent on 10/06/09 at 11:05 AM
The point that jumps out to me, other than the obvious upon which others have commented, is that $240K is the cost of gaining a legal decision/interpretation about a matter of dispute.

Independence of the judiciary and its separation from the legislative and executive arms of government is regarded as of great importance in Australia. Judges act independently of the Government in interpreting and applying the law. But ... at what price?

That’s my point, $240K for an independent and impartial interpretation of rights under the law, as is everyone’s entitlement under Article 10 of the Universal Declaration of Human Rights.

A very expensive basin right (interpretation) to my thinking. Then to add further hurt, it seems there remain questions about the integrity of processes to gain the decision.

Posted by Geraldine Allan on 10/06/09 at 01:30 PM
Regardless of the merits of the legal case, why does Bob Brown have to pay anything at all?

All of the parties from Forestry through the Courts to Bob himself, have been paid by, and were presumably representing, the public in some way.

We have already paid for the whole lot.

Now they have a difference between public agencies and representatives and are demanding additional money, increasing the total amount of money that the 3 groups have received by $240,000.

How can this be justified? How is it affordable?

It’s basically the same con that has the State government handing additional work to new water authorities and therefore claiming that the public has to pay more. This method is just another excuse to reach into our pockets for more.

The effect is that the more we pay governments and representatives, the more additional costs they heap upon us.

This financial merry go round is unsustainable and highly damaging. Worse, it rewards governments and departments for being bad stewards of other peoples’ money.

Posted by Mike Bolan on 10/06/09 at 01:50 PM
Be thankful in Tasmania that you have a Green Opposition because in South Australia we have a rampaging Labor Government with little opposition.

Posted by Brenton on 10/06/09 at 02:02 PM
Re #35 I should note that my comment about RFA forestry operations applies specifically to the Tasmanian RFA; I do not know if the five Victorian, three NSW and one WA RFAs have similar exemptions or not.

In the specifically Tasmanian context I don’t have any great concerns relating to the exemption as threatened species protection is covered at state level by a system that allows species to qualify for listing far more easily than under the EPBC Act. As I have discussed before here the so-called state level exemption from threatened species law for forestry is not really an exemption as such but rather a parallel permit system that reflected the way relevant expertise on wildlife was distributed between different sectors.

The findings of Marshall J that the species in question were not being adequately “protected” rested upon a radical and (for many species) unrealistic definition of “protect” drawn largely from interpretation of feelgood waffle Australia had signed up to at international treaties.

Posted by Dr Kevin Bonham on 10/06/09 at 02:05 PM
If Forestry Tasmania had been doing the right thing by the environment and endangered species to start with, none of this would have happened.

We’ve personally met some of the FT thugs and experienced their game playing. It’s not pretty.

We have also met Bob Brown. The likes of Bob Gordon and co will only ever dream about being as respected as Bob Brown. History will remember such a fine person.

The likes of Bob Gordon, a FAILED labor candidate, in charge of a FAILED GBE, and co are dime a dozen, and obviously not worth their weight. FT knows they are on the losing end now, they will try anything to try and get rid of anyone who will expose the truth. We only wish we could name and shame some of these, believe me, very evil people – the behind the scenes ones who have been elevated so quickly, the ones even some FT personnel are very worried about. Oh that’s right they are the ones, who love lighting fires! Some of which have got out of control – deliberate or not!?!

Posted by Claire and Charles Gilmour on 10/06/09 at 03:18 PM
Justice Kev has pronounced judgment, and the matter is closed. Kev J has invoked the Thuggo/Humpty Dumpty doctrine that the law is whatever ensures a woodchip victory at the time. Threatened species can go moan to the UN.

John Hayward

Posted by john hayward on 10/06/09 at 05:38 PM
To Kevin #33, there is one precedent set by a mentor of our government. If the Tasmanian government followed their training at the Bjelke Peterson School of Politics in Sheffield they could follow his lead and appoint a senator from any party they wanted.
I can’t recall who it was now but Jo appointed a replacement senator from his own party rather than a labor man. So the flavour of the replacement is not set in concrete only in polite convention.

Posted by Pete Godfrey on 10/06/09 at 07:17 PM
#33 says “Seems like you might be having trouble telling rainforest from buttongrass from that comment.” Rooowwwwlll.

Posted by Sos on 10/06/09 at 08:11 PM
And I remember that Green Senator Bob Brown was the only person in both houses of parliament publicly to question President George W. Bush about the detention without trial of an Australian citizen.
The rest just polished presidential apples.
Other phrases occur to me, just as they will to you.

That’s why I’ve just supported him financially.

Posted by Mike Adams on 10/06/09 at 08:40 PM
Hi Mike…is there an account by which we might transfer donations directly by EFT? I agree with you on Bob’s strong stance on human rights. I only wish he might also get involved in the scurge that is poker machine gambling. It is a cause that is close to me, and I thank Nick Xenophon for making it mainstream. Cheers.

Posted by Sos on 10/06/09 at 09:11 PM
Peter Henning in #37 provides no evidence whatsoever that my #33 was spin, that it contained any inaccuracies, or that Bernard Keane’s interpretation was more accurate (it was, in fact, more speculative). Henning’s post is just a pointless ipse dixit and unless he is willing to present actual evidence then it is a waste of space that is not even worth debunking.

However, for what it’s worth, the Keane summary rests on the untested and now untestable premise that the High Court would have reverted the overturning and reinstated Marshall J’s orders. Bear in mind that the FT costs Brown has been hit with are for his defeat in the appeal, not his failed application for a further appeal, and not even for the original case despite it being overturned. Only if the High Court had set aside the appeal cost rulings could Brown have escaped this bill.

Amy (#38), your argument is very unconvincing indeed. Of course the WHA contains large areas of non-forested habitat and this information has been freely available for decades (it is hardly a revelation brought to the world by Google Earth). However, firstly your argument doesn’t consider what proportion of the old-growth forests are in reserve types (such as forest reserve) outside the WHA and national parks, and secondly, even if that proportion was zero, the combined area of the WHA plus national parks would exceed the total area of old growth with plenty to spare. So your argument is just a case of assuming and clutching at straws.

The RFA definitions of old-growth are not FT’s but are the expert definitions used by JANIS (1997). JANIS was a joint enterprise of the Australian and New Zealand Environment and Conservation Council and the Ministerial Council on Forestry, Fisheries and Aquaculture. See http://www.daff.gov.au/rfa/publications/reserve-system. The same consideration applies to mapping of these areas used to ground the claims that you question - they are not just forestry-term homebakes but are based on classifications supported by expert botanists.

Of course old-growth tea-tree forests (where sufficiently tall to be considered forests by expert botanists) are as entitled to be considered old growth as are old growth forests of anything else (and indeed such forests can have high conservation values themselves). But if you really think expert botanists would put their name to “buttongrass plains with stands of alpine scrub” as “old growth forest” then you need to give an example of such an area and show that it was mapped as such.

I cannot comment on what proportion of the Upper Florentine is non-forested as I do not know what exact definitions of the area are in play in the “90%” statement that is being challenged, nor have I seen the FT coupe maps or plans for the area. But I am not inclined to take your word for it.

Given that your case is riddled with holes, misattributions, dubious unsubstantiated assertions and weak speculation, the final paragraph that is supposed to follow from it all can safely be ignored.

Posted by Dr Kevin Bonham on 10/06/09 at 09:28 PM
Pete(#45) the filling of a Senate vacancy is the duty of the state parliaments, and traditionally they chose a person from the same party, thus fulfilling the electors’ assumed wishes.

Joh, filled the place of Bert Millner by nominating Albert Patrick Field, who was a token member of the Labor Party being a member of the Furnishing Trades Union as I recall, but an person who was not enamoured of the Whitlam view of the world.

Gough in turn had a less than enthusiastic view of Albert whom he described as “an individual of the utmost obscurity, from which he rose and to which he sank with equal speed”.

Posted by John Lawrence on 10/06/09 at 09:33 PM
Look you lot, we in forestry aren’t just hoons with chainsaws you know.

No.

We’ve got dozers an skidders and all kinds of other stuff too.

So there.

Posted by Blair Trumpet on 10/06/09 at 09:57 PM
We all got to get the quality of the metal in that man Abetz when he went after Ken Henry with great gusto and then retreated for all his worth and more, when Henry decided to growl a little back at him.

It reminded some of a little dog barking at a big one, thinking the big one is on a short chain - only to suddenly find that it wasnt. A little dog who scurries, fast, wide eyed and scared back to shelter, tail between its legs.

The score was: Henry - a lifetime of laughs and wins and stories to tell to grandkids. Abetz - well he got something he’s very familiar with.

Posted by Richard Butler on 10/06/09 at 10:00 PM
Geraldine (#39), the 240K was actually the cost of unsuccessfully defending an appeal that was brought by a body that wanted its rights and obligations re-determined after the initial determination appeared to them to be unsound. Brown was hardly obliged to contest this appeal but chose to do so.

Secondly Brown was not standing up for human rights in the original case; he was standing up for his view of the rights of swift parrots, wedge-tailed eagles and Lissotes latidens.

He was seeking to establish his right to challenge the appeal finding when he went to the High Court, but that is not where the 240K comes from.

For the record here’s the Article 10 you refer to:

” * Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

Mike (#40), the reason Bob has to pay is that by taking this legal action against FT (and losing the appeal) he has created extra expenses for FT above and beyond those it would normally expect. To say that because we fund public bodies therefore those taking public bodies to court should not have to pay ignores the fact that getting taken to court by every activist with a gripe is not what we fund public bodies *to do*. Thus, the claim of double-dipping is incorrect. It is more akin to a semi-user-pays system, as exists in many government departments, in which there are some services funded for free as a result of taxpayer funding, but also some things that the department sells at a cost.

Pete (#45), what Joh actually did was appoint an obscure Labor Party member, AP Field, who was known to be critical of Whitlam and was not the party’s stated preferred candidate. Field was expelled from the party after accepting the Senate seat. Around the same time the NSW Premier appointed a person who was a member of no party to fill a Labor casual vacancy.

Furthermore in 1977 a referendum was passed that required that a replacement senator be from the party under which the replaced senator was originally elected (or nearest available equivalent). There is still some potential for sneaky stuff since the state appointing the Senator is not bound to accept the party’s nominated candidate, as shown in 1987 when the Tasmanian parliament refused to nominate John Devereux.

Posted by Dr Kevin Bonham on 10/06/09 at 10:03 PM
Nice try Kevin but your interpretation is simply wrong and as usual coloured by your own hatred of conservationists. Instead of trying to pick holes in my analysis which simply arent there go back and have another read and you might learn something.

Posted by pilko on 10/06/09 at 10:13 PM
There are comments appearing here from those very people that have little understanding or even care toward the evils of environment destructive vested interests, corporate controls, Stock market manipulations, companies intentionally offering specious and clearly obfuscated advices to the media and so on, yet they ignorantly remain unwary of the true state of affairs in our society.

Greed and self interest are right at the top of most business enterprises that plunder Australia’s resources, look no further than BHP and their counterpart Rio Tinto.
Both of these companies have left much waste and ruin behind them when their filching of resources in their particular areas have run out and are gone..

Both these big Australians are no better in their determinations to plunder and grow rich, this very same applies to Gunns Ltd.

Looting and plundering so the big boys of these companies can boast of their wealth and victory over the the ignorant and those whom openly oppose and object.

The collective media, if given the motivation to so do, can choose to make glorious, or break the back of any particular company’s purposes and
positioning, such as we see and read of the industry of Gunns Ltd.

Deeply involved in using the media as a marketing tool and also to create a false image, is that very crafty forestry institution in the name of Forestry Tasmania.

There is no regulatory body on this planet that has the power to interfere in the grubby doings and dealings of Forestry Tasmania, for I have tried every avenue available, the highest levels within and beyond the Commonwealth Federal and State governments, through to the English Monarchy, our supposed overall authority.

The State Governor of Tasmania will not intervene, why I cannot say, is it fear, or is it embarrasment, maybe he is purposely indolent toward this particular forestry business arm of the Tasmanian State government?

Is it any wonder that the Federal Court by its own judicial system, thus in itself chose to find a ruling against the appeal of Bob Brown?

Like most of the Worlds Robber Barons, these Barons have an uncanny knack of getting the result they are prepared to pay for, the right kind of justice that leaves them free to do as they will, even trespass upon our human rights if they so choose.

It is a dirty business that proliferates without regulation of and toward its non-constitutional agendas.

William Boeder.

Posted by William Boeder on 10/06/09 at 11:06 PM
If Brown is replaced by convention and it is not a Green will that candidate last past his term?. Field from Queensland was a oncer.

If that candidate does not like the ETS how happy will Rudd be with Bartlett?

The reasons for awarding costs against such a public interest case are was it frivilous, was it vexatious and did the complianant draw out the the time unnecessarily.

I cannot find as I have no power. The judge was convinced so the arguements must have had merit although points of law caused Brown to loose.

As one poster pointed out it has been a brilliant political failure giving brown the clothes of a martyr and with small donations probably the money.

They may have the power to make the law and the power to enforce it but step by step the moral support for their activities divides further.

Change is a comin, you may not like it, but coming it is.

Posted by phill Parsons on 11/06/09 at 07:08 AM
And here’s another one, pilko in #54 casts unsubstantiated slurs, alleging my analysis is wrong and biased but providing no evidence whatsoever. Another lame dumb ipse dixit and another waste of bandwidth that serves only to indicate that the poster is busted in the debate but lacks either the grace or the intellect to admit to it. Don’t people like pilko and Henning realise that a post like that only makes it clear that they have nothing?

And, of course, we get the straw man that my analysis is affected by “hatred of conservationists”. Hey numbskull, I am actually a longstanding member of a conservation-oriented natural history group, and have many friends who are self-described “conservationists”, but conservationists and radical anti-forestry activists are by no means the same thing. There are plenty of people in the Greens who I like, and far from hating Dr Brown, I find him to be a likeable individual and enjoy chatting with him when the opportunity arises despite our political differences on some issues. But hey, don’t let the facts get in the way of your idiotic straw man burning.

phill: see my above post, the replacement Senator would have to be a Green. But it’s all fuss about nothing anyway; Brown will have little trouble finding a way around this and will not lose his Senate seat over it unless he chooses to deliberately sacrifice it as an unorthodox means of retirement.

Posted by Dr Kevin Bonham on 11/06/09 at 11:30 AM
re #38 and #49

for the record 25 % of the upper Florentine is non-forest. nearly 50 % is oldgrowth forest (including rainforest and tall eucalypt).

around 65 % of the upper floz is reserved to some degree, but more than half of the tall wet eucalypt forest targetted by the loggers is available for logging.

of course it depends on how you define the ‘Upper Florentine’ - but there is a bottleneck between the upper Florentine (surrounded on 3 sides by reserves) and the ‘lower Florentine’ which makes an obvious boundary.

Posted by nic on 11/06/09 at 01:27 PM
Dear Editor,
Kevin Bonham (#33) states that “The overturning of the original case on appeal was nothing to do with the amendment to the law made following the original case.” He states “pilko in #16 makes the same mistake as does Garry Stannus in #22…” Kevin Bonham’s letter contains much in the way of assertion, but is at odds with my understanding of the facts of the Wielangta saga.

I’m asking Kevin Bonham to clarify the situation by identifying which of the following chronological elements he considers erroneous.

Yours faithfully,
Garry Stannus,
Liffey.

PS On the grounds that his claims do not seem to be in accordance with the known facts, could you ask him to give references for his claim that “The overturning of the original case on appeal was nothing to do with the amendment to the law made following the original case.” I accept that I might be wrong on this matter, but I need more than Mr Bonham’s simple unsubstantiated assertion that I was wrong.

Wielangta Chronology
[http://www.on-trial.info/]

30 May 2005
Senator Brown applies to the Federal Court for an injunction to prevent logging in two Wielangta coupes to protect the Wielangta Stag Beetle

June 2005
Injunction refused (logging began in coupe 17E at 4 am the following morning) but Forestry Tasmania agreed to defer other logging until after the court case

August 2005
Federal and state government apply to intervene in the case in support of Forestry Tasmania

December 2005
Trial begins (followed by 33 days of hearings finishing in May 2006)

August 2006
Final submissions

December 2006
Justice Marshall rules the logging illegal because of the impact on endangered species and orders that no forestry operations be undertaken in Wielangta unless the court permits

February 2007
Forestry Tasmania appeals to the Full Federal Court against virtually the entirety of the trial judgment. The state and federal governments again intervene to support Forestry Tasmania

February 2007
The Tasmanian RFA is amended by agreement between Prime Minister Howard and Premier Lennon in response to the Wielangta decision. In particular, cl 68 in which the state agreed to protect endangered species is re-written

August 2007
Full Federal Court appeal hearing (five days before three judges)

November 2007
Full Court judgment overturns the trial decision saying that RFAs give no guarantee that the environment including endangered species would not ‘suffer’ as a result of logging. Moratorium on logging in Wielangta removed.

January 2008
Senator Brown applies to the High Court for special leave to appeal

February 2008
High Court submissions lodged

May 2008
On Friday 23 May the High Court, on a 2:1 majority, refused Senator Brown’s application for special leave to appeal the Wielangta Forest Full Court decision. The considered that the Howard-Lennon 2007 amendments to the Regional Forest Agreement meant that an appeal would have insufficient prospects of success.
As a result, Wielangta Forest can be logged and only the Commonwealth and the State of Tasmania have the power to enforce the Regional Forest Agreement through the Prime Minister and the Tasmanian Premier. It remains the case that the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 has never been tested in the High Court.
The High Court did not issue a costs order, meaning that each side bears its own costs for the special leave application. However, Senator Brown will have to pay Forestry Tasmania’s costs for its successful Full Court appeal.

Posted by Garry Stannus on 11/06/09 at 01:31 PM
I think colouring one’s text with Latin is in itself an excuse and an apology.

Posted by Sos on 11/06/09 at 02:10 PM
Some of Kevin’s best friends are Greens.

Nice one Kev.

Posted by heh on 11/06/09 at 02:25 PM
Kevin Bonham;

Just say it for less. Your work is far too self serving and so full of elitist and self assumed intellectual snobbery most readers get about 3 lines in and see the underlying message. “Im great, know much more, and whenever I write anything it should be received as truth, where-as anyone else who writes back in some kind of challenge is to be responded to with an indignant and defensive attack.”

Whether or not you like Brown is immaterial. Who cares. Its about policy and conduct. And membership of a history group ? So what. You can put a shoe in the oven and it doesnt make it a biscuit.

In the main youre seen by many as being an intellectual oxygen thief, most capable of producing lengthy and frequently colourless rubbish from a pen and ego bordering on a scale of (Gordon) Ramsey-esque proportions.

For what purpose - to convert other beliefs ? To be on the record as being a defender ? To help by providing explanation ? Im sure its not the truth - youre far too imperious. And youre certainly too fixed to engage in debate.

Maybe its because you just like to write stuff and read it over, thinking youve just learned something when finished.

“he sits beside a stagnant pool, when he sees his reflection he is fulfilled”

In the future - and whenever you write anything (useful or not) Im sure many people will just write back and say ‘thanks’.

Many would say youre somewhere up there with that little piece of scrub “Woodworker” - you’ve probably got a career as the next Premier if you push in. There’s a queue of dolts and maggots seething magnificently in front of you.

But you do seem to have most of the other qualifications.

Go take a Bex and have a little snooze. No one will notice that youve stepped out for a while.

Posted by Richard Butler on 11/06/09 at 02:59 PM
It’s good to know that the paranoia pills and the conspiracy cream continues to work.

It is quite amazing the world some of u people live in despite what u think and in some cases truly believe the rest of Tasmania and the world does not spend each and every hour plotting against u. Yuu may as Why? I hate to be frank but it’s because u r not that important.

Talk about grandiosity but then again from what I recall isn’t grandiosity a major component of a paranoid psychosis?

Keep taking the pills and rubbing in the cream they are working just not in the way you might have hoped.

Dave

Posted by dave on 11/06/09 at 04:20 PM
Sos (#48)

The Bob Brown Forest Account
Bendigo Bank
BSB 633 000
A/C No 125133793

Posted by Garry Stannus on 11/06/09 at 05:42 PM
Geez kev whats with the name -calling tiger? you said i got it wrong - i said you got it wrong. Whats the problem?
I gave up debating with you years ago because of your chronic inability to ever admit that your wrong.
No need to to turn vicious. Take a bex mate and a have a lie down.

Posted by pilko on 11/06/09 at 06:20 PM
I overlooked the comment of Ross Hart (#6) that the legal system was not at fault in overturning the judgment. I might have made it clearer that I was including the legislative branch, which combined the input of Thuggo and The Rodent, to trash several fundamental jurisprudential principles.

John Hayward

Posted by john hayward on 11/06/09 at 06:23 PM
Can’t help it, but if Latin is the flavor of the day, I wouldn’t mind commenting that “ipse dixit” when I was boning up on that rusty language, could be translated as ‘he himself has said it’ or ‘... spoken’, if you like. You could think of it as “The master has spoken.”

Kevin Bonham seems to be suggesting that Mssrs Henning and Pilkington believe that their names carry weight, that they have relied on their personal authority rather than actually backing up their opinions.

I myself am of the opinion that Kevin Bonham while studiously avoiding the “ipse dixit” slant, rather tends towards the “argumentum ad hominem” style of debate with regard to this Wielangta thread. Of course this opinion of mine is not worth a pinch of the proverbial, because I haven’t supplied chapter and verse, so I admit in advance that I am wrong, illogical, without basis “et cetera”. I have to say - and again this is just opinion, not based on anything much more than value judgement - that Classical Latin is head and shoulders above its mongrel descendants: Church Latin (not too bad, but moving down the slippery slopes), then Legal Latin and lastly Taxonomical Latin, which I have to say is a real shocker ... it would fair put you off your dipthongs.

I apologise for the diversion, it’s just a bit of nervous tension, waiting for Kevin Bonham to come back onto the thread and point out the errors in #59.

Can I contribute the following schoolboy doggerel?
“Latin is a language,
As dead as dead can be;
Latin killed the Romans
and now it’s killing me”

and finally, in anticipation:

‘Nos morituri, te salutamus!’

Posted by Garry Stannus on 11/06/09 at 09:30 PM
How can one argue with Kevin Bonham now that Brown has the money given that the news is correct.

The next on the Senate ticket at the last election was Wilke who has announced he will run as an Independent in the Satet seat of Denison.

Now there’s a reason to ignore convention just like this government ignores many things.

Sturgo could not intervene on behalf of a war vetereran threatened with eviction but lennon could for a pulp mill.

Scal may be different but [principle remains the same. Either you can intervvene or you can’t.

Posted by phill Parsons on 11/06/09 at 09:39 PM
Garry (#59), I have not been saying anything in that chronology is wrong, although if I went through it carefully I might find interpretations I disagreed with. What I am saying is that the inference you have drawn from the chronology (that Brown lost because the goalposts are moved) is incorrect. Just because one event in the chronology happened after another doesn’t mean the latter caused the former. In this case the critical items are:

“February 2007
The Tasmanian RFA is amended by agreement between Prime Minister Howard and Premier Lennon in response to the Wielangta decision. In particular, cl 68 in which the state agreed to protect endangered species is re-written”

and

“November 2007
Full Court judgment overturns the trial decision saying that RFAs give no guarantee that the environment including endangered species would not ‘suffer’ as a result of logging. Moratorium on logging in Wielangta removed.”

The latter was not causally connected to the former but occurred because the Full Court judges disagreed with the original ruling and considered it to be an incorrect ruling based on the law at the time that it was ruled on by Marshall J. (As it happened they also ruled that the amendment simply made the legislation mean what it was originally intended to mean, so rather than moving the goalposts what it really did was clean up sloppy drafting. See Greg Barns’ comment at http://www.crikey.com.au/2009/06/11/comments-corrections-clarifications-and-cckups-16/#comments) and also 92 to 98 in the Federal Court findings linked to below.

Garry also claims that my view seems to be not in accordance with known facts. He doesn’t say which known facts it is not in accordance with (which would give me a chance to rebut either his factual claim or his claim of non-accordance) but at the same time he wants me to give more factual basis for my claims. Bit of an unintended double standard there in my view. Gets a bit tedious doing work for posters who aren’t putting the work in themselves.

But I will do so anyway. The Full Court ruling is at http://portsea.austlii.edu.au/au/cases/cth/FCAFC/2007/186.html . I recommend every poster on this thread who has not read it in full do so before risking putting mouth in foot further.

The basic reason the appeal was upheld is that the Full Court held that “Section 38 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) exempts appellant from requirement in s 18(3) of the Act that it take no action likely to have significant impact on threatened species.” That is a finding about the law as it existed years prior to the case and not a finding about the impact of the post-Marshall changes, which the Full Court clearly ruled to be inconsequential on the basics of the matter.

So once again: Bob Brown lost on appeal because the original ruling was wrong. The law was changed to clarify it following the initial erroneous ruling. In a third case he was denied leave to appeal his appeal loss, and the law change was the reason for that denial, but it was not the cause of him losing on appeal in the first place. There are three distinct cases here and three seems to be one too many for most of the simplistic commentaries on this matter to count to.

Posted by Dr Kevin Bonham on 11/06/09 at 09:42 PM
“Richard Butler” (#62) - nobody on this site would notice if you took a permanent vacation from it so take your conciseness flames and shove them in the vacant space between your ears. TT was deliberately set up as a site where people could have proper debates in detail as an alternative to the superficial trash in the mainstream media but anyone actually attempting to do so who fails to toe the prevailing line of the peanut gallery can expect to be accused of elitism, snobbery and all the rest of your garbage. I haven’t seen you level the same accusation at Peter Henning whose articles are often far more elaborate than even my most longwinded comments, and considerably less to the point sometimes too, although the excursions into esoterica of ancient history are often interesting to read even if analogically inapplicable to whatever is being discussed.

That you are a clueless idiot out of your depth, and that you really don’t get what I say despite claiming that you do, can be seen in your bunny-blunder (if I may use such a chessism here) where you refer to my membership of a “history” group. The term I used was “natural history”, and if you knew anything about science as opposed to being a carping uninformed dingbat you would know that “natural history” is not actually a branch of “history”. Another word I could have used is “naturalist” but you would probably think that referred to people who take their clothes off in the great outdoors.

Whether or not I like Brown is immaterial? Couldn’t agree more, but smell the coffee sunshine, I didn’t bring that one up, it was brought up by pilko (#54) falsely accusing me of “hatred of conservationists”. I am allowed to defend myself against such moronic slurs and if it gives other morons like you apoplexy then I count that as a bonus. And as for oxygen thieving, such a chemical is not only wasted on you but ashamed to be associated with your circulation system; I am not stealing it but rescuing it!

You make false assertions that I’m too fixed to engage in debate (actually I welcome it but the standard here is often so low that it’s rare that anyone on a thread like this convinces me of anything) and draw unsubstantiated corellations between your view of my personality and whether my comments are true, as if only forum-hippies are allowed to know or express the facts and anyone failing to follow their code of conduct must be fibbing. Actually, if you’re looking for someone to apply all that drivel to, go look in the mirror, but do first insure it against breakage.

After all, 3 lines into your 27 lines of pointless bile (complete with armchair psych-hack insinuations of narcissism, how cliched) it is very obvious what you are saying, yet you proved yourself to be a total hypocrite (and I mean you the person hiding behind the pseudonym Richard Butler, whichever loser you are) by suggesting I should “say it for less” (whatever that means). Also, if anyone’s in need of a dose of medication here, it is you.

I have been clear about my purpose in the comments sections here many times - it is primarily to ensure that false and unsubstantiated eco-alarmism (and other strains of nonsense) does not exist unmolested by the facts. It is to ensure that readers get both sides of these debates so that no one is sucked into one on the false assumption that the other cannot be rationally defended. There will be more detail about this attitude shortly; you too have been warned.

Lastly although there are doubtless portfolios in which I could make the incumbents and their shadow wannabes look shabby, I have no present state-political aspirations and my stated past and present views on a wide range of issues are such that none of the three main parties would consider preselecting me, nor me consider standing for them.

Posted by Dr Kevin Bonham on 11/06/09 at 10:20 PM
Not to be one to enter a fairly gruesome ‘debate’ where the sides are implacable, but Kevin, while I admire the effort, you are simply not going to convince or convert the pernicious posters here as they have already made up their mind, and facts aren’t simply going to do anything about that. What we have is a bunch of admirers of Bob Brown and haters of the government who are unified in their willful incapacity to understand the facts of the matter. It doesn’t fit the ‘story’. I think post 62 neatly summarizes the world view and simple nastiness, as well as the inability to process the information you are trying to provide.

Posted by Tomas on 11/06/09 at 10:23 PM
pilko, amusing to note that you and your fellow clueless idealogue Richard Butler came up with the same lame cliche about Bex and lying down at the same time, when you two are among the most prone on this site to make uncalled for attacks on other posters and should take your own medicine before trying to foist it off on anyone else.

It is not just a case of me saying you are wrong and you saying I am wrong, and it reflects badly on either your comprehension or your character (probably both) that you even pretend it is.

In #33 I said you had made a mistake and said why. In your response (#54) you said I was wrong *without* saying why, but worse than that, in the absence of any personal attack on your character in #33, you personally attacked mine, accusing me of being motivated by hatred of conservationists.

What’s with the name calling? Well you tell me when you’ve got the plank out of your own myopic eyes, buster. You are the one who initiated the name calling and now you are trying to blame me for it. Very common troll tactic there.

You also go on with this ridiculous empirically false twaddle about me supposedly never admitting I am wrong. In those rare instances when I have made incorrect comments on this site I have admitted to them. For instance I recently made an incorrect comment about a Leg Council candidate’s electoral past, and when advised that it was wrong I posted a correction (and posted it again when it failed to go through). The problem for you is that in most of these debates you and your fellow clowns fail to demonstrate that I actually am wrong. This is not necessarily because you are wrong; but if you are right you clearly lack the skill to demonstrate your point convincingly. Partly this is because I tend to carefully pick battlegrounds with a strong factual basis rather than just firing off any old junk unchecked like many on this site.

Garry (#67) I must confess that I pinched “ipse dixit” from a poster on another forum who uses it ad nauseum in similar contexts. And yes, certainly in Henning’s case I suggest he is making an implied argument from authority, as if his stature as one of the brainier greenies here will carry any waffle he writes about me even when it’s vacuous nonsense. In Pilko’s case I really don’t suggest that; even among his own kind he has little authority to throw about. But while I do flame plenty of hominems (homina? I never studied Latin, more’s the pity) here, usually in response to them flaming me, there are definitely no formal ad hominem arguments in my posts preceding #67.

Not having my recently submitted crisping of the dimwit “Richard Butler” in front of me I cannot say whether or not it employs ad hominems, but Butler’s post was not even a contribution to the debate but rather a puerile personal flame, and it gets what it deserves without too much concern for formal niceties given the abysmally low logical standard set by its author.

Indeed, a classic *real* case of the formal ad hominem fallacy is pilko’s #54 in which he basically implies that I am wrong because I (supposedly) hate conservationists.

It should be stressed that the ad hominem fallacy exists where a personal attack exists as a *substitute* to debate. If I debunk someone’s nonsense at the same time and criticise them personally as well, then the personal criticism is not necessarily an ad hominem.

Or to put it simpler, an ad hominem is playing the ball instead of the man. When incorrectly personally attacked my inclination is to play the ball, *and* also play the man (or woman) on account of them having played the ball so incompetently.

Posted by Dr Kevin Bonham on 11/06/09 at 10:52 PM
Dear Kev,

Nobody gives a stuff about you or what you think. Lots of people give a stuff about Bob. Get over it, in Latin if you like.

Posted by blah on 11/06/09 at 10:54 PM
Kevin #33:
“The appeal court found that RFA forestry operations were not subject to the EPBC Act and never had been.”

Kevin #69:
The basic reason the appeal was upheld is that the Full Court held that “Section 38 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) exempts appellant from requirement in s 18(3) of the Act that it take no action likely to have significant impact on threatened species.”

He got it right the second time I think. Have to wonder about some of the earlier stuff.

Posted by Neil Smith on 12/06/09 at 12:09 AM
And that ruling of the appeal court (Federal Court Full Bench) just goes to show what a pathetic and useless Act the EPBC Act is.

Designed to fail by Howard and Co, and fail it did. Bob Brown valiantly tried to make it work by arguing that “protect” had a plain English meaning, and indeed he managed to convince Marshall J.

I’d like to think he might have convinced the High Court too if he’d been granted leave to appeal. After all, there is something inherently attractive in letting words mean what people expect them to.

It would have been most interesting (and possibly useful) to let the High Court pick over this crazy piece of legislation. The reason the case never got there was the 2-1 split decision that couldn’t help recognising the Feb 2007 change to clause 68 of the Cwlth-Tas RFA.

So the villains are again the politicians. And they expect us to have respect for the laws they make.

Posted by Neil Smith on 12/06/09 at 12:37 AM
Should Kevin Bonham now be thanked for showing the Environment Protection and Biodiversity Conservation Act isn’t designed to protect?.

Political window dressing for the moment.

Posted by phill Parsons on 12/06/09 at 07:05 AM
It is an undeniable intrinsic fact that there was a sinister purpose inherent in the (2) persons whom re-shaped the wording of the relevant passages of the RFA.
Another undeniable fact is that there was a determined search for a means to dislocate and rape the wording set out in this particular passage.
The lawyer’s cunning in JWH would have been much aroused in lustful delight to find such a mechanism to punish the environment establishment, as is known generally this same person has an American Best Buddy who enjoyed ignoring all environmental concerns, thus recently got the push from his top spot because of his constant denials and annihilations toward the goodness of humanity.
Now enter the second of the conspiring duo, another toppled biggish frog in leadership, but only of a small dirtily muddied puddle of a small State type villain.
As most of you can readily determine whom this spiteful renegade is, suffice to say this ex-Premier enjoyed this type of backroom plotting, hoping dearly to annihilate any victim who dared stand in his pathway to help his hero of the wretched Pulp-Mill.
So for all of the recently prior forensic investigators whom have sought to find and implant sunshine into this dark dishonarable affair, alas there be none!

Do note that Forestry Tasmania are, still clear-felling and destroying at will, destroying wildlife and habitats in whatever Ancient Forest that they can lay claim upon, and now are seen acting the part of the injured bystander in this whole heinous intended affair.
Baddies.1
Goodies. nil.
Slavish lavish avaricious purposed people can ever find low type accomplices to their cause, particularly when in pursuit of PURE POWER AND EXTREME NON-ACCOUNTABLE GREED.

Posted by William Boeder on 12/06/09 at 11:33 AM
blah (#73) (AKA “heh” from further up the page), your inane and irrelevant view that no-one cares what I think is empirically contradicted by the facts. Since I first posted at #33, 18 of the 36 subsequent posts not by me have been clearly in reply to me, while some others may or may not have been. Some posters even appear to be more interested in turning this into a thread about me rather than one about Senator Brown, and it rather looks like you are one of them.

Neil (#74), if you actually bother to check the content of S 38 of the EPBC Act you will see that the two quotes by me that you give are saying exactly the same thing and that your inference that the first quote was wrong is erroneous. Here is section 38:

http://www.austlii.edu.au/au/legis/cth/consol_act/epabca1999588/s38.html

Which part of:

“(1) Part 3 does not apply to an RFA forestry operation that is undertaken in accordance with an RFA.”

... is it necessary for me to underline, place in bold, deck with holly, cover with bells and pay for space to advertise same on the front cover of the Mock in order to illustrate that I was saying exactly the same thing in both quotes?

With that one cleared up, are there any remaining statements about the facts of the cases that I have made that you wish to dispute and if so why?

Posted by Dr Kevin Bonham on 12/06/09 at 01:15 PM
I find it very interesting how snakey Bob Brown’s detractors get when confronted with the overwhelming support this man gets as evidenced by the number of people willing to put their money where their mouths are.

The green-eyed monster was never very attractive.

Posted by Annie on 12/06/09 at 02:40 PM
William Boeder, your posts are a delight. More please.

Posted by emily on 12/06/09 at 05:06 PM
I don’t really believe that Kevin (vide #74 and #78) thinks that his two ways of describing the appeal court decision are saying the same thing.

In the first he asserts that “RFA forestry operations (were) not subject to the EPBC Act”. This is not so. Any action likely to have significant impact on listed threatened species is subject to the EPBC Act. It’s simply that s38 of that Act provides an exemption from the provisions of Part 3 (of the same Act) for that sort of forestry operations. A not uncommon scheme in legislation.

For the operations to gain the exemption requires the reading of s38 of the Act. Therefore the operations (although indeed, in the view of the Court, exempt from the provisions of Part 3) are not “not subject to the EPBC Act”.

Yes, I know that to the man in the street the operational difference is infinitesimal. But were one to be arguing such matters in a court one would need to appreciate the difference.

I’m actually rather surprised that a person who may conceivably be Tasmania’s leading pedant - and one who spends quite a lot of time upbraiding other correspondents for their lack of devotion to exactitude - could have been quite so sloppy. Particularly as he seemed to understand what was what the second time around. It’s quite inexcusable really.

Posted by Neil Smith on 12/06/09 at 09:50 PM
Kenny - thanks for the 7 paragraph response and the warning.

Good of you to show your humility on ‘those rare occasions’ when you find yourself to be wrong.

I use the name I was christened with. That may make any further issue of warnings easy. When you or the team have dreamt up something of consequence - be sure to let us know.

There are a few Richard Butler’s about the place - but we all
know - there’s only one you.

————

Non enim contra corpus et sanguinem pugnamus
contra tyrannos et sententias daemonicas
tenebrarum qui consumpserunt
hoc mundum. Absentia enim lucis est, in qua
tenebrae obtinent

Better go, ’ pants on fire. Ive been crisped - or so Ive read.

Posted by Richard Butler on 12/06/09 at 11:48 PM
#72 Re Bex. I forgot to declare that Richard and me (my real name is Richard too!....well there you go) have shares in the Bex company and we should have declared this. I still reccommend you have one though Dr. Kev,

Posted by pilko on 13/06/09 at 10:31 AM
Pity help Tasmania: business as usual ramped up; mega-pulpmill brewing; supporters have to cough up for green leader: - then debate in the one independent forum going is deluged with pedantry and bile.

Is 18 out of 36 a score to be proud of?

If 240,000 dollars won’t decimate opposition, will 240,000 bullying, imperious words snuff out any residual community concern?

The ruling class are on a roll. You can bet they will stick the boot in. How dare the little people lay claim to a polite debate about the big issues? Bullies make their own concerns the business of all.

Who will be proud of miring the relevant issues raised here? You guessed it…

Posted by Peter Rundall on 13/06/09 at 11:53 AM
Does that make 19 out of 36 for You?

What about the rest of us?

Posted by Peter Rundall on 13/06/09 at 12:06 PM
Non enim contra corpus et sanguinem pugnamus
contra tyrannos et sententias daemonicas
tenebrarum qui consumpserunt
hoc mundum. Absentia enim lucis est, in qua
tenebrae obtinent

For we fight not against flesh and blood,
but against principles, against authorities,
against tyrants and the demonic ideals
of darkness which have consumed
this world.
For it is the absence of light, in which
darkness prevails.

Posted by Richard Butler on 13/06/09 at 03:03 PM
I prefer the King James version of Ephesians 6:12

“For we wrestle not against flesh and blood, but against principalities, against powers, against the rulers of the darkness of this world, against spiritual wickedness in high places.”

Posted by Peter Bright on 13/06/09 at 08:30 PM
“Pedantry and bile” or pedantic bile? De Caelo Missus, Ad Infernum Tentus ...

Posted by Sos on 13/06/09 at 08:41 PM
Noli nothi permittere te terere.

Posted by Valleywatcher on 13/06/09 at 11:19 PM
Ad meliora.

Posted by Sos on 14/06/09 at 01:13 PM
Quare operor nos se gero a disputatio postulo a reddo.

Vos vultus universa ex tactus.

Tendo locus lingua, vel colloquial poema poematis of populus premier patria

Posted by phill Parsons on 14/06/09 at 01:45 PM
Dear Kev, you’re mistaking an enjoyable few minutes pricking a bloated ego with interest in your good self or your good self’s opining.

Posted by hehblah on 14/06/09 at 05:21 PM
Nice to see that, after a two year absence, Tasmanian Times in 2009 is a lot like it was in 2007.

Kevin Bonham debates a topic by reference to the specific details of a judgment of the Federal Court of Australia and (with the notable exception of Neil Smith), everyone else ignores the detail and responds by hurling vaguely formulated abuse at him. Outstanding.

“Blah” is a good example, with this one:

“Dear Kev,

Nobody gives a stuff about you or what you think. Lots of people give a stuff about Bob. Get over it, in Latin if you like. “

which was then followed up with:

“Dear Kev, you’re mistaking an enjoyable few minutes pricking a bloated ego with interest in your good self or your good self’s opining.”

Nice one, mate. You definitely knocked Kevin over with that detailed analysis.

See you in 2011.

Posted by Geoffrey Hills on 15/06/09 at 10:06 AM
(93)
Geoffrey Hills ?????? perhaps if you WERE here to see the unwarranted crap that is dished out by Bonham MOST of the time you would understand the anger , perhaps a whip around ! for a ticket to the forthcoming “MARILYN MANSON” concert might put him in a more agreeable frame of mind.
d.d.

Posted by don davey on 15/06/09 at 02:19 PM
#93 Why would anyone sign off “Dr”? I don’t sign off as “Mr Sos”. He might be a smart chap, but he’s also an arrogant pain in the arse, by all accounts.

Posted by Sos on 15/06/09 at 03:26 PM
Aaw Geoffrey how can you ever really be gone from Cyberspace? are you sure you havent been lurking? Come Geoffrey admit it, you love the website dont ya.

Posted by pilko on 16/06/09 at 06:14 PM
Yeah, I admit it. I’ve been lurking.

Posted by Geoff Kennett on 17/06/09 at 01:17 AM
Kevin Bonham wrote:
“The overturning of the original case on appeal was nothing to do with the amendment to the law made following the original case. The overturning was with reference to the law as it stood when the original case was heard.”

In their judgement, the Appeal judges:
held that clause 68 of the RFA was the relevant requirement in determining whether the State was exempted from s 38 of the EPBC (para 17)

questioning whether exclusion from the EPBC was applicable under s 38 of the EPBC, made their decision on the basis of the interpretation of cl 68 of the RFA. (paras 59-68)

held that on an appeal under s 27 the Court must decide the rights of the parties upon the facts and in accordance with the law as they exist at the time of hearing the appeal (para 90)

and admitted that the original decision in favour of Brown had made the new clause 68 necessary. (para 98)

THE OLD CLAUSE 68
“The State agrees to protect the Priority Species listed in Attachment 2 (Part A) through the CAR Reserve System or by applying relevant management prescriptions”

THE NEW CLAUSE 68
“The parties agree that the CAR Reserve System, established in accordance with this Agreement, and the application of management strategies and management prescriptions developed under Tasmania’s Forest Management Systems, protect rare and threatened fauna and flora species and Forest Communities.”

As the old essay question used to suggest: “Compare and contrast”.

Posted by Garry Stannus on 21/06/09 at 12:20 PM
“Richard Butler” (#82), I accept that I was assuming you were using the name of the disgraced ex-Governor as a pseudonym without proof that this was the case. But nor do you provide proof that it really is your name - sure, the name itself is common enough, but we only have your word for it that it is yours, and as the remainder of #70 showed, your word is that of a clueless hypocritical troll. Of course, clueless hypocritical trolls can and do post under their real names (and there are quite a few on this site who do so) but your behaviour doesn’t engender trust in the veracity of your claims.

That said I’ll put aside the question of your anonymity or otherwise, which is not of great importance to the rest of my response.

There is indeed plenty of fighting against principles and authorities on this board (in the sense that if you have an expert opinion you can expect some dingbat here to have an ideological aversion to accepting the facts) but that shouldn’t be confused with fighting for light (and the light/dark metaphor is all a bit dubious anyway, though not quite as dubious as using theistic babble as a source for quotes.)

Posted by Dr Kevin Bonham on 24/06/09 at 04:11 PM
Neil (#81), you start by saying that you don’t believe me when I say that I think two things are the same. Well, thanks for that little incorrect attack on my honesty (which you later contradict anyway by suggesting I was being sloppy). I’ll bear it in mind and just call you a liar in future every time I see you say something I consider to be untrue, if that’s the way you want to play it. Otherwise, I look forward to your retraction.

The only basis for your attack on my honesty is that you think there is some difference between the claims that I should have seen, and the reason you think I must have seen it is that you think I am a pedant.

You’d be better off checking that cliched (and often incorrectly cast) aspersion at the door because even once you have explained your reason for thinking the two things are different, I’m still not convinced there is a difference.

Something being explicitly exempt from an act in which it is mentioned is exactly the same as something being not subject to that act in terms of the actual meaning and impact of the Act. In either case the meaning is the Act does not affect the conduct of the activity in question. That is exactly what an exemption does: it states to which things an Act does not apply. If there is a technical legal difference between being exempt from legislation and being not subject to that legislation, and that makes a difference, you will need to explain why and how.

Just saying that the exemption only becomes apparent once you read the Act is irrelevant obfuscation. If you haven’t read the Act you don’t even know that the Act applies to anything.

Now, it is true that the exemption contained in the Act is “only” an exemption to part 3 of said Act, but part 3 is the guts of it - the requirement for approval.

Peter Rundall (#84), I don’t care whether 18/36 is a score to be proud of or not; I was simply stating it to combat false assertions that nobody cares about my views. Evidently many here do care and become greatly vexed about them!

The remainder of your personal attack is just bizarre. Me, ruling class? What an absolute joke. I offered my opinion starting in #33 just as many others have done through the debate. For my trouble, far from the “little people” engaging in “polite debate” I got Peter Henning who should know better groundlessly accusing me of spin, Pilko engaging in hack psychoanalysis, “Richard Butler” trolling, Neil accusing me of lying, heh/blah/hehblah being inane and so on.

The reality is that if my intention in these debates was to sidetrack them into muck then I would hardly need any help since all these sorts of posters are so good at doing it for me. But I’m not seeking to drag debate in any direction - I just respond to stuff that I consider incorrect, whether it is about the matter at hand or about whatever trivia of my posting style some tryhard wants to take a potshot at. There have - albeit rarely - been cases here where those responding to me are able to stick to debating the issues instead of trying to fling personal rubbish. When that happens, the debate does not become diverted.

heh/blah/hehblah - obviously quite a few of the irate respondents to my posts are not enjoying what they are doing at all, and are spending rather more than a few minutes on doing it. If you really enjoy depositing your own tiny droppings onto this forum then your pleasure threshhold must be as low as your delusion level is high. A poster as inane and vacuous as you couldn’t prick a kid’s party balloon with an AK-47.

Sos (#95), the reason for the “Dr” signoff is that certain TT posters, knowing full well that my title is Dr, continue to deliberately use “Mr” in an attempt to troll and annoy me. I believe they do this out of disrespect for my expertise and therefore I respond by rubbing their noses in it (the issue has a very long history here.) As has been stated before, when deliberate incorrect use of “Mr” ceases for long enough then the “Dr” tag itself gets removed.

Posted by Dr Kevin Bonham on 24/06/09 at 04:50 PM
Garry (#98), you quote the following from the Brown summary:

“In their judgement, the Appeal judges:
held that clause 68 of the RFA was the relevant requirement in determining whether the State was exempted from s 38 of the EPBC (para 17)”

Incorrect. In para 17 they were simply describing the reasoning of the primary judge (Marshall) who had ruled on the matter. They were not making a ruling themselves in para 17.

“questioning whether exclusion from the EPBC was applicable under s 38 of the EPBC, made their decision on the basis of the interpretation of cl 68 of the RFA. (paras 59-68)”

You can see very clearly in para 60 which quotes text found in the old clause 68 (and not in the new) that it is on the basis of the old clause 68 that this view was reached.

“held that on an appeal under s 27 the Court must decide the rights of the parties upon the facts and in accordance with the law as they exist at the time of hearing the appeal (para 90)”

True but this does not invalidate my comment that they determined the original decision to be incorrect based on the law as it existed then. In fact, they determined it was wrong before the amendment and wrong after it as well.

Indeed they found that the new clause 68 made no difference; the appeal court found of the new clause 68 that “it more clearly says what we think it means in its original form” and “simply puts in clearer language what we regard as the true meaning of the original clause.” So the appeal court has found that the amendment was of no actual significance in terms of the meaning of the clause, but was nonetheless necessary to clear up misunderstandings of it in the previous case.

Posted by Dr Kevin Bonham on 24/06/09 at 05:11 PM
An interesting comment, Kevin (#101) but you have clearly based your analysis on reading the Federal Court of Australia judgment, rather than on a Greens press release about the judgment. That’s completely outrageous! This is Tasmanian Times - no one here needs to plough through a wordy legal judgment when that nice Senator Brown has provided a handy summary for us.

It is rather amusing that you picked up Mr Stannus’ (#98) most embarrassing (and simple) clanger - mistaking Sundberg, Finkelstein and Dowsett JJ’s description (FCA at [17]) of Marshall J’s reasoning at first instance for a ruling by Sundberg, Finkelstein and Dowsett JJ! Guess that’s what happens when you don’t read the judgment.

Re the rest of #101 - your approach to identifying the ratio decidendi of a judgment is not one that is taught at Tasmanian Times Law School. According to Tasmanian Times methodology, the correct way to identify the ratio is that, in any given case, you gather opinions from Bob Brown, Brenda Rosser, Phil Pullinger, Garry Stannus and Mike Bolan and then the ratio is whatever a majority of them think. *Note that for constitutional cases, you need a special majority of 4/5.

Posted by Geoffrey Hills on 25/06/09 at 10:35 AM
Au contraire, Kevin Bonham. I invite you to examine again para 17 and in a spirit of goodwill, I give you the opportunity to correct your mistake, before continuing this discussion.

PS You write that I quoted from a Brown summary:
Not so, the remarks to which you have responded

(e.g. that the appeal judges agree in para 17 that clause 68 was indeed the elevant requirement)

are ‘from my own pen’ and come from a considered study of the available primary sources.

Posted by Garry Stannus on 26/06/09 at 02:23 PM
Hello Garry

If it is not the case that your summary is derived from material other than the Federal Court judgment, then I apologise for suggesting otherwise.

Before I step through the reasoning of your post #98, can I emphasise that lawyers have a specific definition of what constitutes the “reasons for decision” in a judgment. The reason why there is a technical definition of that concept is because of the doctrine of precedent. As you know, in our legal system, the decisions of superior courts of record are binding on courts below them in the same court hierarchy.

In our legal system, only the reasons that are strictly necessary for the Court to make a decision on the facts of the case before it are binding on courts below. Comments made by judges along the way on other issues which are not strictly necessary to making a decision on the facts of the particular case are not binding on courts below (although they may be persuasive). Such passing comments are known as obiter dicta.

Therefore, when lawyers refer to a Court’s reasons for decision, they mean only those reasons that were strictly necessary in the process of reasoning leading to the Court’s decision on that particular case.

I’ll now step through your points in #98:

Garry Stannus: “In their judgement, the Appeal judges:
held that clause 68 of the RFA was the relevant requirement in determining whether the State was exempted from s 38 of the EPBC (para 17)”

By “relevant” requirement, their Honours mean “relevant to this case” and nothing more. There was no issue as to whether the requirement was in clause 68 or somewhere else. In this paragraph, the Court is simply dealing with an issue that had been agreed between the parties as being an issue (see paragraph [4] of the judgment, which reproduces the parties’ agreed list of issues).

Garry Stannus: “questioning whether exclusion from the EPBC was applicable under s 38 of the EPBC, made their decision on the basis of the interpretation of cl 68 of the RFA. (paras 59-68)”

This is almost right. Instead of saying “paras 59-68”, you should have said paragraphs 59-69.

The Court’s decision is in paragraph [59]: “The question is whether cl 68 does require the State to protect the species in this way [the way that the trial judge thought it required]. In our view it does not. Clause 68 does not involve an enquiry into whether CAR effectively protects the species. Rather it is the establishment and maintenance of the CAR reserves that constitute the protection.”

In paragraphs [60] to [68], the Court gives 8 reasons to support its decision.

Reason No 1 is contained in paragraph [60]. The Court says that “[t]he verbiage of cl 68 supports this view.” (Ie., the words of cl 68 support this view.)

Now - and this is the important bit - the Court then identifies the words in cl 68 which it says support its view. Those words are “through the CAR Reserve System” (see para [60], lines 2-3 and para [60], line 15.

Those words - “through the CAR Reserve System” - are from the old clause 68, NOT the new clause 68.

It is clear here that the Court is referring to the unamended clause 68.

Reasons No 2 and 3 are the interpretive assistance provided by the Explanatory Memorandum and Revised Explanatory Memorandum (respectively) that accompanied the Act when it was introduced as a Bill into Parliament.

Reason 4 is in paragraph [63] and is based on the fact that, under Part 2 of the RFA, the State’s obligations are expressed to be unenforceable.

Reason 5 is in paragraph [64] and is based on interpretive assistance provided by background materials, including the JANIS report, existing at time the RFA was entered into.

Reason 6 is in paragraph [65] and is based on cl 50 of the RFA.

Reason 7 is in paragraph [66], where the Court considers it relevant that the RFA was a Tasmania-wide agreement.

Reason 8 is in paragraph [67] and is that the CAR was a developing process over time, rather than a static thing that came into being at the time of entry into the RFA.

As I noted above, the problem with your analysis was that, in mentioning paragraphs 59 - 68, you have left out paragraph 69.

(CONTINUED NEXT POST)

Posted by Geoffrey Hills on 26/06/09 at 07:09 PM
(CONTINUED FROM PREVIOUS POST)

In paragraph [69], the Court says that “[a]s appears below at [80], cl 68 has been amended so that it more clearly says WHAT WE THINK IT MEANS IN ITS ORIGINAL FORM.” (my emphasis in capitals)

I assume that when their Honours say that “it [the new clause] more clearly says WHAT WE THINK IT MEANS IN ITS ORIGINAL FORM”, that language speaks for itself. The Court is saying “that was the proper interpretation of the original clause 68 anyway.)

In the section of the judgment beginning at paragraph [85], the Court discusses the Respondent’s [Bob Brown’s] Amended Notice of Contention. After the original decision and after the amendment to clause 68, Senator Brown filed an Amended Notice of Contention, which pleaded that the amendments “materially reduce and/or remove the obligations imposed by the RFA on the State of Tasmania in relation to the protection of the Priority Species listed in Attachment 2 to the RFA” and pleaded that because of that, the Tasmanian RFA was no longer an agreement that satisfied the conditions imposed by s 4 of the RFA Act.

In paragraph [92], the Full Court gives its decision on that pleading by Senator Brown. Its decision reads: “The amendment to cl 68 of the RFA, insofar as it relates to CAR, simply puts in clearer language WHAT WE REGARD AS THE TRUE MEANING OF THE ORIGINAL CLAUSE.” (my emphasis in capitals)

It is because of these two paragraphs (69 and 92) that the statement Kevin Bonham made is correct.

What the Court is saying in those two paragraphs is, although they determine the appeal by reference to the parties’ rights and liabilities as they stood at the time of appeal (and those rights and liabilities had been modified by amendments to the RFA), those amendments MADE NO DIFFERENCE to the appeal Court’s decision because it considered that the trial judge, Justice Marshall, was wrong about the meaning of the ORIGINAL clause (see paragraph 60 and what I have called “Reason 1”).

Garry Stannus: “that on an appeal under s 27 the Court must decide the rights of the parties upon the facts and in accordance with the law as they exist at the time of hearing the appeal (para 90)”

Correct

Garry Stannus: “and admitted that the original decision in favour of Brown had made the new clause 68 necessary. (para 98)”

That is not correct. This is the paragraph where you have become confused.

Paragraph 98 does not say that “the original decision in favour of Brown had made the new clause 68 necessary”. It says that the amendment would have been unnecessary but for the erroneous (wrong) decision by Justice Marshall. There is a difference! By unnecessary, the Court simply means that the Government would not have taken that action if Justice Marshall’s decision had been correct. But the appeal Court is not saying that the amendment was necessary in order to get the appeal Court to reverse its decision. As I have described above, the appeal Court’s reasons for decision are at paragraphs [59] to [69].

Garry Stannus: “As the old essay question used to suggest: “Compare and contrast”.”

That essay seems to ring a bell from my humanities and social sciences days. It is not, I can assure you, a question that you would ever seen in a Law School examination.

I hope that clarifies things.

Geoff

Posted by Geoffrey Hills on 26/06/09 at 07:14 PM
Garry, re your “PS”, I’m happy to stand corrected on my erroneous assumption that you were continuing to quote from Bob Brown’s website’s summaries as you had done in #59.

However your interpretation of para 17 (unlike mine) remains incorrect and you will note that Geoffrey Hills has confirmed this in #102. Geoff did not bother to detail his considerable qualifications and practical experience in law and political science but I am sure you can find out plenty on that score easily should you need to.

For those who have not bothered to read it, para 17 is one of a number of paragraphs (5-21 in the Full Court ruling) that are headed “Primary Judge’s Treatment of Issues” and clearly serve to summarise what the original judge had found, prior to moving on to consideration of the appeal against those rulings. That not every sentence in para 17 is prefaced with “The primary judge said ...” may have caused you a degree of confusion here but changes nothing; paras 5-21 are simply summaries of a previous judgement.

Thankyou for the invitation to correct my mistake but I cannot correct a mistake that does not exist. :)

Posted by Dr Kevin Bonham on 26/06/09 at 08:26 PM
Kevin, for the benefit of other readers I include the actual text:

PARA 17…
17 The primary judge dealt first with s 38. He was of the view that the words “in accordance with an RFA” oblige the State, as a condition of obtaining the exemption in s 38, to ensure that operations it carries out through the appellant are conducted in accordance with the requirements set out in the RFA. The relevant requirement is cl 68. See the particulars under [2(j)] and issue 10 at [4]. The first limb of cl 68 requires the State to protect the species through the CAR Reserve System (CAR). The primary judge said at [240]-[241]:
“An agreement to ‘protect’ means exactly what it says. It is not an agreement to attempt to protect, or to consider the possibility of protecting, a threatened species. It is a word found in a document which provides an alternative method of delivering the objects of the Act in a forestry context. ... The method for achieving that protection is through the CAR Reserve System or by applying relevant management prescriptions. Does that mean the State’s obligations are satisfied if, in fact, the CAR Reserve System or relevant management prescriptions do not protect the relevant species? I do not think so. If the CAR Reserve System does not deliver protection to the species, the agreement to protect is empty (in the absence of relevant management prescriptions performing that role). If relevant management prescriptions do not perform that role, the State should ensure that it does, otherwise it is not complying with its obligation to protect the species. To construe cl 68 otherwise would be to turn it into an empty promise.”
...END OF PARA 17

It is clear that the words ...

“The relevant requirement is cl 68. See the particulars under [2(j)] and issue 10 at [4]. The first limb of cl 68 requires the State to protect the species through the CAR Reserve System (CAR). “

... are those of the Appeal Judges and are not, as you have asserted, simply their description of Marshall’s reasoning.

Perhaps you might now find yourself able to admit your error?

PS I chided you in #67 for a tendency towards ‘ad hominem’, yet in #106 you wrote “...you will note that Geoffrey Hills has confirmed this…” and you went on to cite his “considerable qualifications” etc, thereby suggesting you remain willing to flirt with the device.

[http://www.austlii.edu.au/au/cases/cth/FCAFC/2007/186.html]

Posted by Garry Stannus on 27/06/09 at 07:36 AM
At the perhaps satisfactory conclusion to this lengthy in depth analysis of the Court interpretations of which meant what.
A reading of the RFA some 12 or so months ago, gave little concern toward the wildlife surviving in the soon to be and those in the past logged coupes or forested regional timber executions.
That in itself gives much food for thought as to the intent of the RFA from its inception.

Thereby the stating of the RFA as the basis for any and all references to the matter of wildlife, this leaves the reader with little material to seek satisfaction as to any obligatory concern, by forestry entities for any and all species of our indigenous in the wild creatures.

Posted by William Boeder on 27/06/09 at 08:57 AM
There have been many words in this thread and I sadly confess to a comprehension level of less than 1%. It is all just too much for me.

What I know is that Tasmanian trees that should be left standing for the benefit of suffering humanity and our ailing planet are being cut down by forest workers, and that they do this to earn sufficient income to pay their way fairly through life’s bills and struggles.

That’s very honourable of course, but their method is corrupt.

It therefore seems to me that this whole terrible business could be resolved if there were no workers to fell the trees.

The retraining, and if necessary the relocation of forest workers, can hardly be an original thought. I would like to see the situation where, when Gunns points to the trees and shouts “Go! Kill!” there’s no forest workers there to hear.

This would require that the people of this state accept that there will be a bill for the necessary retraining of forest workers, that it accepts that this is a far more honourable way of dealing with this whole divisive matter, and demands that the state government opens the way and perseveres with it.

We would then have a peaceful outcome, updated workers happier that they’ve made the move into better and probably more rewarding activities, and trees - trees, glorious trees - left alone to do what they do best.

Posted by Peter Bright on 27/06/09 at 09:01 AM
Garry, I have already disposed of the point that you attempt to make in #107 - I did so in #106 when I wrote:

“For those who have not bothered to read it, para 17 is one of a number of paragraphs (5-21 in the Full Court ruling) that are headed “Primary Judge’s Treatment of Issues” and clearly serve to summarise what the original judge had found, prior to moving on to consideration of the appeal against those rulings. That not every sentence in para 17 is prefaced with “The primary judge said ...” may have caused you a degree of confusion here but changes nothing; paras 5-21 are simply summaries of a previous judgement. “

You say that it is clear that certain words “... are those of the Appeal Judges and are not, as you have asserted, simply their description of Marshall’s reasoning.” But you provide no evidence whatseoever that those words are not a description of Marshall’s reasoning (you just simply assert without evidence that they “clearly” are not) and you completely fail to address my argument above as to why they are a summary.

As such you continue to falsely and without evidence accuse me of an error I have not made (complete with blustering nonsense trying to intimidate me into “admitting” it) instead of facing up to the evidence that you are the one who has misunderstood what is going on here.

You also clearly don’t understand what the term “ad hominem” actually means (and this is the second time now you have demonstrated cluelessness about that concept). If you wanted to make a coherent attempt at the spot-the-logical-fallacy game then the correct thing to attempt to accuse me of there is not “ad hominem” (which is *attacking* the arguer as an alternative to addressing their argument) but “argument from authority”. However even that attempt would fail as I would point out that since your claim that I was wrong in #103 was bereft of *any evidence whatsoever*, then pointing out that a qualified lawyer has rejected it is as good a response as any, and indeed there is not even any need for me to make any response at all for your claim in #103 to be useless to the debate. Thus, my reference to Geoffrey’s qualifications is not an attempt to argue that because he is qualified he must be right, but rather one to suggest that a reasoned opinion from a qualified lawyer is to be preferred to unsubstantiated assertions from a fairly typical member of the TT peanut gallery.

Peter (#109), given that earning an income rather than being unemployed benefits a certain proportion of “suffering humanity” and that the products of the timber industry are useful to a very large portion of that humanity, what makes you so sure that the benefit of logging to humanity is less than the cost?

Posted by Dr Kevin Bonham on 27/06/09 at 12:58 PM
Man you guys really need to go out and have a beer together!

Posted by Sos on 27/06/09 at 09:06 PM
Kevin, the older I get the less sure I am of anything, but even while approaching 70 years of age I still try to nut things out independently. I’m aware that deception abounds.

In a brief post such as mine above (#109) there’s insufficient space for a complete evaluation of my proposal (certainly not original, as we know) that forest workers be retrained upwards rather than allow themselves to be cynically exploited as myrmidons to destroy our old-growth forests.

There is no room for any unemployment in my proposal. Implemented intelligently, it just won’t happen.

All I’m asking is that people think, and put principle before profits.

Posted by Peter Bright on 27/06/09 at 09:33 PM
This is an absolute Bonham classic.

“Peter (#109), given that earning an income rather than being unemployed benefits a certain proportion of “suffering humanity” and that the products of the timber industry are useful to a very large portion of that humanity, what makes you so sure that the benefit of logging to humanity is less than the cost”?

If you have to ask that question then there is no way you will understand the answer Kevin. That someone who considers himself a ” scientist ” and delights in calling others clueless would ask such a question about the impacts of logging on humanity makes me question his scientific nouse. Here are a couple clues Mr Clueless. Oxygen, Co2, food, water, shelter, pollution. Now write me an essay whilst i ignore you!

Posted by pilko on 27/06/09 at 10:57 PM
Dear Readers:
Garry and Kevin are having this discussion partly because in #33, Kevin challenged the view that the changes to Clause 68 of the RFA were responsible for the success of the appeal by Forestry against the original Wielangta judgement which was in favour of Bob Brown.

At the moment we are not moving forward in our discussion, having become a little stuck on whether or not Clause 68 played any part in the Appeal Judges’ decision.

Garry had said that in Para 17 of the Full Court Decision, the Appeal Judges had held that “clause 68 of the RFA was the relevant requirement in determining whether the State was exempted from s 38 of the EPBC”

Kevin has said that in Para 17 the Appeal Judges were “simply describing the reasoning of the primary judge (Marshall)...”

Garry has contradicted this by reference to the words of the Appeal Judges, “The relevant requirement is cl 68. See the particulars under [2(j)] and issue 10 at [4]. The first limb of cl 68 requires the State to protect the species through the CAR Reserve System (CAR).” and went on to say that to him it was clear that these words were not a description of primary Judge Marshall’s reasoning.

Kevin has asked Garry to supply evidence to support his view that the words, “The relevant requirement is cl 68…,” function not as a description of Marshall’s reasoning, but as a view actually held by the Appeal Judges.

Garry replies (below) to Kevin:

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Kevin
I hope that you will agree that I have summarised things correctly in the above.

Para 17 (excluding the two italicised quotations from Marshall’s judgement) comprises 6 sentences:
1 ‘The primary judge dealt first with s 38.’
2 He was of the view that the words “in accordance with an RFA” oblige the State, as a condition of obtaining the exemption in s 38, to ensure that operations it carries out through the appellant are conducted in accordance with the requirements set out in the RFA.
3 The relevant requirement is cl 68.
4 See the particulars under [2(j)] and issue 10 at [4].
5 The first limb of cl 68 requires the State to protect the species through the CAR Reserve System (CAR).
6 The primary judge said at [240]-[241]: ...’

Kevin, with regard to the reasons why sentences 3, 4 and 5 are clearly instances of the Appeal Judges ‘speaking their own mind’ I would firstly invite you to consider the use of tense.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
On other matters, you wrote of my “unsubstantiated assertions from a fairly typical member of the TT peanut gallery.” I can’t say that I found that particularly civil. Geoffrey Hills also made some disparaging remarks which he has not withdrawn. Only on a question of fact, did he proffer an ‘If it is not the case that ... then I apologise’ – hardly a handsome formula. I would like to have responded to his discussions in #104 and #105 which I have only skimmed – they look interesting – but at present I deem him ‘persona non grata’.

I have found it hard to know how much detail and explanation I should include when writing to you, Kevin. Some things I have chosen to exclude, thinking that you would realise that I had read this or that, and that it didn’t need stating, trying to keep it simple etc. Some things you have written, I haven’t responded to because I’ve wanted to keep my focus on the essential question, which is cl 68. This para 17 thing is a good case in hand. And here, if you’re willing, I’d like to talk about it just in an informal way. When I first read para 17 it appeared to me to be as you suggest – the Appeal Judges giving their view of Marshall’s reasoning. But in my reading and re-reading of the Decision and other documents, I began to feel para 17 wasn’t just what it seemed to be. I thought about it a fair bit and came to the view that in the 6-7 words of sentence 3, the Justices had spoken their own view. The reasons for this we are now beginning to explore and I’d rather keep them for use down the track, should we stumble on that far. What I’d like to know is whether in your own mind you have wondered about the meaning of those 6 or so words, whether it was always clear to you what they meant, whether your perspective has changed/shifted. Why I’m asking, is that in some way I’ve been surprised that you haven’t shown any willingness to grant room in those words for a different analysis. I actually expected that you would stop and explore the possibility of there at least being room for valid or at least rational-yet-differing interpretations, and in my lighthearted invitations to you to correct your errors, I was in effect saying, ‘No, I’m serious, I do think they mean what I have claimed they do, don’t you?’.

Posted by Garry Stannus on 28/06/09 at 09:51 AM
#113 would be classic pilko were it not the case that pretty much everything the useless hothead writes is so forgettable. He completely misses the point of my comment, as he practically always does. The point of my comment is not that logging has no negative impacts as pilko pretends it to be, but rather that it is one thing to point to what one claims to be those impacts (and these claims are frequently exaggerated or wrong anyway) and another to be confident that they outweigh the benefits. Such a simple point one would hope even a poster as thick as pilko could grasp it, but clearly not.

Posted by Dr Kevin Bonham on 28/06/09 at 03:15 PM
Garry, I wasn’t particularly concerned with what you found civil after you twice falsely accused me of use of ad hominems (a claim you still haven’t retracted despite me disposing of it in both instances).

Your only actual attempt to provide evidence re para 17 in #114 concerns the use of tense. This is unconvincing. The irregular use of present tense when summarising the views of others is far from uncommon in exegesis. Perhaps I am more used to it than you because I am so used to reading academic summaries of the form “for author Y, X is the essence of argument Z. W is not a conclusive counter-argument to ZZ theta alpha ...” in which the present tense is used even though Y has been pushing up daisies since 1900.

By the way the issue between us is *not* actually whether or not Clause 68 played a part in the Full Court decision. Of course it did; however, the Full Court found that Marshall J had misinterpreted the original clause and that it actually means the same as the amended clause. Our debate about para 17 is actually not relevant to whether clause 68 played a part or whether the change in clause 68 was decisive; both these points can be resolved without considering para 17. It just happened that you incorrectly considered it part of the fresh reasoning of the Full Court, and I explained why it was not.

As for what evidence you present or don’t present re para 17, that is up to you. But an assertion that you have more up your sleeve is not a compelling argument, especially not if it is as weak as what you’ve put on the table so far.

And no, I have not been in any doubt that the section concerned is just a summary of Marshall J’s reasoning. It is very clearly headlined as such and there is no compelling reason (the slightly odd way it is written not counting as such) to think otherwise.

By the way, the amended clause 70 may help to set at rest the minds of those who think there is now insufficient protection (although I doubt it):

“The Parties agree that where a Recovery Plan for a forest-related species in Tasmania or a Threat Abatement Plan concerning a Priority Species (Attachment 2 Part A) is in force, any recommended actions in the Recovery Plan or the Threat Abatement Plan that are within the jurisdiction of the Parties will be carried out in accordance with the timelines specified in the relevant Plan. If an action has not been carried out in accordance with the timelines in the relevant Plan, it will be carried out as soon as possible afterwards.”

Posted by Dr Kevin Bonham on 28/06/09 at 04:04 PM
Garry

If it is not already clear from #104 that I apologise for having criticised you on the basis of a false assumption, then I can only reiterate my apology.

It is a shame, I think (although it is absolutely symptomatic of Tasmanian Times) that you “deem” me persona non grata (quelle horreur, to be so deemed by Garry Stannus!) without actually having bothered to do more than “skim” my detailed, 1300 word explanation of the Federal Court’s judgment. Those 1300 words explain, in some detail, why your assertion that the amendment of clause 68 caused the Full Court to overturn Justice Marshall’s decision is a misapprehension.

Why do I bother, Garry? Out of a (probably misplaced) belief that lawyers have a duty to contribute to public debate about the law, to educate, and to provide the facts or explanations around which such debate can take place.

When it comes to the law, there are no right answers about what the law should be. But there are right answers about what the law is. The latter is all that I have tried to provide for you here.

Best wishes
Geoff

Posted by Geoffrey Hills on 30/06/09 at 10:12 AM
Dear typical members of the TT peanut gallery:

It seems that I have recently been nominated for membership of the peanut gallery by Kevin Bonham, and I write in support of that nomination and I trust the peanut gallery finds relevance in the following 5 questions with regard to the proposition that ‘Lennon and Howard moved the Wielangta goalposts’.

Having read the documents cited below, could an informed member of the peanut gallery reasonably conclude that:

1 the goal posts were indeed moved,

2 the Judges’ judgement that the original clause 68 was not changed by its being rewritten, but rather, ‘clarified’ was legal casuistry,

3 the decision of SUNDBERG, FINKELSTEIN AND DOWSETT JJ to uphold Forestry’s appeal, was disingenuous,

4 the decision they handed down did not reflect what they the judges really understood the meaning of Clause 68 to have been before John Howard and Paul Lennon changed it, and

5 they, the Judges, decided black was white or in the case of that Appeal, that ‘protect’ did not mean ‘protect’?

If gallery members find themselves able to respond positively to the 5 elements of my question, then perhaps they will also view my nomination for gallery membership with favour.

I’ve read various documents related to the RFA, various legislation, trial judgements, transcripts of proceedings, standing c’ee reports etc. In short, I’ve used a range of primary and other sources to try and understand the issue and as a result of this reading, it seems to me that any similarly informed member of the gallery could reasonably conclude that the goalposts were moved, that the Justices’ decision upheld that act and that on the balance of probability, their decision could not have been made in good faith.

In this thread I have been moving towards a discussion of that point, and have been engaged in a series of exchanges with Kevin Bonham which have led to the creation of a TT peanut gallery of which I apparently have now been put up for complimentary yet uncomplimentary membership.

I wait now, hoping that my application will be progressed, that I won’t be blackballed, and that some ‘Peanut’ in the Gallery will be inclined to accept my nomination.

Yours sincerely

Garry Stannus

Prospective Member

Tasmanian Times Peanut Gallery

zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz

19 Dec 2006

Marshall’s summary of pro Brown judgement

23 Feb 2007

Tasmanian Regional Forest Agreement - Tasmania

Wed 15 Aug 2007

Forestry Appeal, court transcript, day 3

Fri 17 Aug 2007

Forestry Appeal, court transcript, day 5

30 Nov 2007

Full Court upholds Forestry’s Appeal

30 Jan 2008

Brown’s summary of Forestry’s appeal

19 Feb 2008

Reasons why high court appeal should not be granted

25 Feb 2008

Reasons why high court appeal should be granted.

23 May 2008

high court leave to appeal - dismissed

30 April 2009

Second and final report: The operation of the Environment Protection and Biodiversity Conservation Act 1999

8 Jun 2009

Brown’s Seat at risk; Rudd distressed; It’s a stunt says Ken [Tasmanian Times]

Posted by Garry Stannus on 01/07/09 at 07:30 AM
I have said it once and i will say it again, do you ! the protagonists ,this piece enjoy what is taking place here ?

We have a very real problem on our hands and most obviously ,there are plenty of smarts here , but the problem as I see it is that you are all burning yourself out trying to outdo an obvious “Word smith” in the would be Dr, don’t waste your talents guy’s ! individuals like this ! as do many chess addicts enjoy the thrust and parry “regardless” let me repeat “regardless” of the rights and wrongs and unless he is a complete imbecile, when it all comes down to it, he knows what is right ! and you are just playing into his hands.
Now ! I’m not a particularly smart character and what i do know just comes from a long life and many adventures and it must now be obvious to all that whilst initially he tried his tactics with me they JUST DID NOT WORK because I refuse to interact with him directly ! though he said that I would ! as has everyone else ! and have stayed true to my convictions ! and doesn’t he hate that ! which makes me not necessarily smarter ! but a bloody sight wiser, let me rephrase that “I am smarter and wiser”

Now if you have reached the end of this bonham type essay , there well may be a few pointers to take note of in the meantime I await with trembling knees ( which explains my recent sojourn , having just had the left one replaced) the inevitable tirade of fluffy,useless, and flamboyant diatribe, that ! in which he is so proficient.
Think about it !~ you know I’m right ! the thing is what do you really want ! because what is happening here is an exercise in one one-upmanship and you cannot win !

d.d.

Posted by don davey on 01/07/09 at 12:06 PM
There is a detailed analysis of the Wielangta decision in Chapter 6 of the Interim Report into the Independent Review of the EPBC Act by Dr Allan Hawke which has just been released for public comment:

http://www.environment.gov.au/epbc/review/publications/interim-report.html

The analysis commences on page 110 and confirms that “because the Full Court’s did not revisit Justice Marshall’s findings of fact, they remain valid” i.e. the Tasmanian RFA and forest management systems did not adequately protect those three listed species.

The Review totally rejects Forest Industry claims that “the Regional Forest
Agreements provide adequate protection for forest species and habitats in accordance with the provisions of the EPBC Act” and “notes that the Full Court did not determine that the Tasmanian RFA provided adequate protection of threatened species. On the contrary, the court commented, in relation to clause 68 of the RFA:

The question is whether cl 68 does require the State to [in fact] protect the species… In our view it does not. Clause 68 does not involve an enquiry into whether CAR effectively protects the species. Rather it is the establishment and maintenance of the CAR reserves that constitute the protection.

The verbiage of cl 68 supports this view. The State does not agree “to protect the priority species listed in Attachment 2 (Part A)”. It agrees to protect them “through the CAR Reserve System”.

By providing for a CAR reserve system, the Tasmanian government had fulfilled its obligations under the RFA to protect threatened species. It was for this reason that an analyst of the judgment summarised the situation as being: that, in areas covered by the RFA, it is presumed that the protective mechanisms envisaged by the RFA protect the relevant species, even in circumstances where they do not.”

The Review concludes that “submissions to this review have raised real doubts about whether positive environmental outcomes are being achieved under RFAs. To this end, this review agrees with the Senate Committee’s finding that there is a need to improve the transparency and accountability of forestry operations under RFAs and thus better assess the implementation of environmental protection under RFAs, consistent with the objects of the EPBC Act.”

Although the review suggests various methods to improve the accountability of forestry operations such as additional independent scientific/Commonwealth oversight and public input into the RFA process, to my mind the only logical way to achieve this is to remove the exemption from the EPBC Act of forestry operations that are taken in accordance with an RFA.

The Interim Report is open for public comment until 5.00 pm on Monday, 3 August and provides all of us with a real opportunity to shape a better outcome for our environment.

Posted by Malcolm on 01/07/09 at 03:37 PM
Don, your claim that you “refuse to interact with me directly” is demonstrably nonsense. You do respond to my posts frequently and often directly. The only difference between you and the others is a completely irrelevant one, specifically that for whatever bizarre deluded reason you think that you are not responding directly if you use the third person rather than the second person. It doesn’t and you are not only no better off than all the other hacks who try to take me on, but actually among the most hapless of the lot of them. And no, I don’t hate it (since I can’t hate a success that you’re not even having), although I think you should be more honest about how ineffectual and fake the distinction that you’re drawing really is.

Furthermore, it is not the case that I enjoy the argument regardless of the rights and wrongs - when I know a point to be wrong I will not argue that point.

Posted by Dr Kevin Bonham on 01/07/09 at 09:37 PM
Doncha just luv it, got him ! as is usually the case !
just too bloody easy !
heh,heh.

d.d.

Posted by don davey on 01/07/09 at 10:25 PM
Malcolm (#120), it’s true that the Marshall J findings on those points remain intact, but the specific reason they remain intact is that the appeal court ruled there was no valid reason to revisit them and that doing so would be a waste of resources. Had the appeal court done so, we do not know whether they would have left those aspects intact or not.

Thus, the intactness of certain aspects of Marshall’s findings is no reason for automatically taking them seriously. It will be interesting to see what happens if they do come up in court again, perhaps in the role of an attempt to use them as a persuasive precedent or perhaps in another case about the EPBC Act in a different context.

It is correct that the court did not determine that the RFA provides adequate protection. But what the court *did* determine is not actually to the contrary of such a notion. Rather, the Full Court determined that it was unnecessary to enquire as to whether the RFA provides adequate protection, in order to settle the appeal. This is not the same thing as the Full Court finding that the RFA *does not* protect the species in question, and indeed there was no finding of that sort.

Real doubts about whether RFAs were acheiving all possible environmental outcomes were being raised before the ink was dry on their respective papers. I was criticising the superficiality of aspects of CAR in the mid-90s. From a scientific perspective there may not be all that much news on that score.

Thanks for the link to the review, I will read it in detail sometime.

Posted by Dr Kevin Bonham on 01/07/09 at 10:43 PM
Care to elaborate on how you supposedly “got” me, Don? If you mean that you got me to bury you in the hole you dug for yourself, well that’s not exactly anything new now, is it?

Posted by Dr Kevin Bonham on 02/07/09 at 01:44 PM
OK, this is ridiculous. Nearly one month on and 124 posts later, and we’re still going at it. Surely this is just now getting personal!?
How about we talk about this one: http://www.themercury.com.au/article/2009/07/02/82021_tasmania-news.html
Buck Emberg, Proud Tasmanian, Claire Gilmour, and Gillsy are already at it!!!

Posted by Sos on 02/07/09 at 02:07 PM
Sos, you should see some of the fox threads if you think this one is anything unusual.

Posted by Dr Kevin Bonham on 02/07/09 at 02:56 PM
I’m surprised. I’d have thought there’d be one or two posts about how useless the Fox Taskforce is and that’d be it!

Posted by Sos on 02/07/09 at 03:29 PM
EXTRACTS from Forestry Appeal court transcripts, day 3, 15 Aug 2007

JUSTICE FINKELSTEIN: Do you get a different answer now that you have got rid of [...] clause 68? - - - Because you no longer have a prescription as required by the
definition of CAR Reserve System because the definition in section 4 of the Regional
Forest Agreement Act takes you to [- - -] comprehensive, adequate and representative reserve system has the same meaning as in the RFA and I take that to be a reference to the definition of CAR Reserve System because there is no definition of comprehensive, adequate and representative reserve system and that definition requires something to be prescribed and it seems to me to be a tolerably good argument that by getting rid of clause 68, which had a prescription about it, and substituting something which even a contract lawyer wouldn’t think was a contract, you got rid of the prescription and you no longer have an RFA as defined by the Forestry Act. That is a bit of a problem, isn’t it?

FINKELSTEIN: - - - it must be that because there is nothing else and it makes – that is only an abbreviation for the longer version in first definition, and if you go to that, it has for public lands, formal reserves, etcetera, which have CAR values protected by prescription, - - - by rule, regulation, contract, whatever, and the new clause 68 gets rid of the prescription because – in fact, it doesn’t really make sense. It is obvious a contract draftsman didn’t draft this version of the contract.

FINKELSTEIN: I will buy that, I have no doubt about that whatsoever, but if you read it, the parties – so clause 68 says what the State is required to do, agrees to
protect through a CAR system - - -
MR GAGELER (for the Commonwealth): Yes.
FINKELSTEIN: That is prescription.
GAGELER: Yes.
FINKELSTEIN: Clause 68 doesn’t exist any more and I - - -

JUSTICE DOWSETT: But wouldn’t the infringement still be by the State in not performing its legal or moral obligations under the agreement?
GAGELER: Well, there may be a breach by the State in – yes, there may be a
breach by the State, but clause 68 is looking to the person or directed to the person
conducting the forestry operation. Section 38 is directed to the person conducting
the forestry operations.

DOWSETT: Well, I just wonder about that.
GAGELER: Well, let me take it in stages.
FINKELSTEIN: Is a way of saying it this: that the section assumes 10 that there are certain systems in place in a State - - -
GAGELER: Yes, yes.
FINKELSTEIN: - - - that protect different things that is the – picks up all the CAR values, they are in place - - -
GAGELER: Yes, they are in place.
FINKELSTEIN: - - - and if you, the operator, comply with all of those
requirements and systems, then you are doing it in accordance with an RFA or - - -
GAGELER: Yes.
FINKELSTEIN: If a State doesn’t satisfy its obligations under an RFA by having
these things in place, then you can’t be doing it in accordance with an RFA, because
an RFA has certain requirements imposed on a State.
GAGELER: Yes, that is right.
FINKELSTEIN: So as long as the State does what it is meant to do by putting the systems in place, or the rules and regulations in place, and then as long as the operator does what those systems require him to do, then it is in accordance with an RFA.
GAGELER: That is what I am attempting to say, yes. That is the point, your
Honour. And I was really going to finish by referring to two further things within the
extrinsic material that bear out this basic understanding that that is what emerged
from this comprehensive process that began in 1992 and culminated with the RFAs -
were something that the Commonwealth were satisfied satisfied the principles of
ecologically sustainable development. One sees that back in the second reading
speech to which I referred your Honours a moment ago.

DOWSETT: I must say, I still have some difficulty with this, given the purpose of section 38 - - -
GAGELER: Yes.
DOWSETT: - - - which is, I suppose, to exempt from individual liability for a specific offence, well, one of its purposes anyway.
GAGELER: Well, yes. If you start with the default position, which is
relevantly here section 18(3) - - -
DOWSETT: Well, now, why should any act performed in the course of conducing a forestry operation, an RFA forestry operation, be rendered unlawful if in some other respect the operation is not in accordance with the RFA, that is, apart from the act in question? You seem to be saying - - -
GAGELER: No, I am - - -
DOWSETT: - - - or the effect of what is being said seems to be that if there is any departure from any requirement - - -
GAGELER: No, I am not saying that.
DOWSETT: - - - of the RFA, the whole operation is unlawful.
GAGELER: I don’t think I am saying that.
DOWSETT: Well, all right. Well, why not? Isn’t that the consequence of what you are saying?
GAGELER: Yes, I suppose it is, yes.

Posted by Garry Stannus on 03/07/09 at 02:05 PM
THE OLD CLAUSE 68 (Prescriptive, said Finkelstein)
“The State agrees to protect the Priority Species listed in Attachment 2 (Part A) through the CAR Reserve System or by applying relevant management prescriptions”

THE NEW CLAUSE 68 (Non-contractual, said judge)
“The parties agree that the CAR Reserve System, established in accordance with this Agreement, and the application of management strategies and management prescriptions developed under Tasmania’s Forest Management Systems, protect rare and threatened fauna and flora species and Forest Communities.”

Posted by Garry Stannus on 03/07/09 at 02:09 PM
EXTRACTS from Forestry Appeal court transcripts, day 5, 17 Aug 2007
MR GAGELER: Yes, now. Clause 68 in its original form, and in its amended form.
If you don’t have the prescriptions - - -
JUSTICE FINKELSTEIN: Yes.
GAGELER: - - - then you can’t be complying with clause 68.
FINKELSTEIN: That is true of 68, but what happens under the new 68?
GAGELER: Well, the new 68 it is just the same. I mean, if you – and the
ability for the Commonwealth to terminate for breach of 68, which your Honours
were referred to, that is in clause 102.
FINKELSTEIN: I don’t think – the way that I read 68 you can’t breach it, because
it is not an exchange of promises. There is nothing to breach.

GAGELER: Well, clause 102A(5), which remains - - -
FINKELSTEIN: It probably doesn’t apply to the new 68. I wouldn’t read it - - -
GAGELER: Well, we do, your Honour, because – and I will come to this in
just a moment. This is really the third point that I wanted to get to.
FINKELSTEIN: A failure to comply with. I need a promise. What is the promise
in 68?
GAGELER: Relevantly, the application of management strategies. So I want
to be quite clear about this. We say that this was in the old 68 as well as in the new
68.
FINKELSTEIN: I don’t have a quarrel with you about the old 68. What worries
me is that while the old 68 in non-contractual terms still contains an exchange of
promises, the new 68 contains an exchange of nothing. Of views, but not promises.
You can’t breach it.
GAGELER: Well, you can fail to comply with it. The State can fail to comply with it.
FINKELSTEIN: No, it can’t. There is nothing - - -
GAGELER: If the State – well, your Honour, there would not be compliance
with it if there was not an application of management strategies that were there
referred to.
FINKELSTEIN: I don’t know why – you say that, but I have got no idea why you
say that.
GAGELER: Well - - -
FINKELSTEIN: I think whoever has drafted it has mis-drafted it. I had a look a
Lowe v Lombank just for the fun of it yesterday to see what Diplock would have
made of this, and he would say, this is non-exchange of promises.

GAGELER: Well, your Honour, can I just go back to the old version of clause
68? - - - - - - So when one goes from there back to page 152 of volume 3, to the language of clause 68 in its 5 original form, the agreement to protect, in our submission, has to be read not disjunctively, that is, you don’t say it was sufficient to have the CAR system or to apply management prescriptions. Really to make sense of it and in the context, you have got to add the words “as the case may be” to the end of the paragraph.

JUSTICE DOWSETT: Well, it just that 68 says that they agree – leave out the CAR system for the moment:
“The application of strategies and management prescriptions developed under
Tasmania’s forest management system protect 5 rare and threatened fauna.”
GAGELER: Yes.
DOWSETT: Now, how can they agree that undeveloped – that strategies as yet undeveloped protect?
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READERS’ RECAP:

THE OLD CLAUSE 68
“The State agrees to protect the Priority Species listed in Attachment 2 (Part A) through the CAR Reserve System or by applying relevant management prescriptions”

THE NEW CLAUSE 68
“The parties agree that the CAR Reserve System, established in accordance with this Agreement, and the application of management strategies and management prescriptions developed under Tasmania’s Forest Management Systems, protect rare and threatened fauna and flora species and Forest Communities.”

CONCLUSION:
And yet, unaccountably the Justices, in their published judgment, seemed to hold that black was white, that protect did not mean protect, the old Clause 68 meant the same as the new Clause 68, in spite of what they’d earlier articulated in the Court.

Posted by Garry Stannus on 03/07/09 at 02:20 PM
Again we see here in the presented synopsis by Garry Stannus, that there was an unacceptable negative meddling about with the references that engaged the specific necessary protection of listed rare and endangered species.
Such is shown the intent to dismiss the protection obligation, as charged then upon Forestry Tasmania, that there was and is a clearly intended purpose to muddy-up the waters as to the obligation held upon Forestry Tasmania.

An unwholesome dirty legal business that has now given sanction to the forestry industry to abandon the set protection rulings then written in place.
This is what our ex-Premier Lennon and ex-Prime Minister Howard are alleged to have set in motion, to the very detriment of our rare and endangered wildlife species in Tasmania.

So much for the evils of Lib/Lab governance!

Posted by William Boeder on 04/07/09 at 12:12 AM