Tasmanian Times

The individual has always had to struggle to keep from being overwhelmed by the tribe. If you try it, you will be lonely often, and sometimes frightened. No price is too high for the privilege of owning yourself. ~ Friedrich Nietzsche

The individual has always had to struggle to keep from being overwhelmed by the tribe. If you try it, you will be lonely often, and sometimes frightened. No price is too high for the privilege of owning yourself. ~ Friedrich Nietzsche

Environment

Legal anarchy

Alex Wadsley

In his letter to Tasmanians, Paul Lennon said “We will not allow the pulp mill to be built unless it is environmentally safe.” Paul Lennon has lied. Once this act is passed, the state government cannot prevent the building of the pulp mill on any environmental conditions without passing new legislation. This is not an Act of Parliament, this is an act of desperation that excises the Pulp Mill from Tasmania’s legal framework. A Tasmanian legislature that passes such an Act has rescinded its right to self-government and the Bill must be refused assent by the Governor before the State is engulfed in legal anarchy.

Legislative Lunacy – the Pulp Mill Assessment Act 2007

http://www.parliament.tas.gov.au/bills/pdf/9_of_2007.pdf

s.11

Limitation of rights of appeal

(1) Subject to subsection (2) and notwithstanding the provisions of any other Act –

(a) a person is not entitled to appeal to a body or other person, court or tribunal; or

(b) no order or review may be made under the Judicial Review Act 2000; or

(c) no declaratory judgment may be given;

or

(d) no other action or proceeding may be brought –

in respect of any action, decision, process, matter or thing arising out of or relating to this Act.

(2) Subsection (1) does not prevent a review of any action, decision, process, matter or thing which has involved or has been affected by criminal conduct.

(3) No review under subsection (2) operates to delay the issue of the Pulp Mill Permit or any action authorised by that permit.

HAVING briefly surveyed the Pulp Mill Assessment Act 2007, it was, as I had suspected given the brief drafting period, quite the worst legal document I have ever reviewed. My experience is generally limited to reviewing project finance documents from a commercial perspective, which comes down to two fundamental issues, what are the obligations, and what are the consequences of failing to adhere to those obligations.

I am not a lawyer, choosing to complete Honours in economics rather than the last two years of my law degree, but one has to question what interpretation can be placed on section.11 (above) other than to say that virtually the entire Act is unenforceable by the Courts. “Notwithstanding” means “despite everything to the contrary”, so taking 1(d) and constructing the most inclusive elements in a single phrase “No action or proceeding may be brought in respect of anything relating to this Act”. If no action can be taken, either to enforce compliance or punish non-compliance, its terms are meaningless, except to the extent that it also removes the project from the requirement for any approvals in section 9.

s9. Provisions of Acts, planning schemes, &c., not to apply to project

(1) The provisions of any Act, planning scheme, special planning order or interim order –

(a) requiring the approval, consent or permission of any person in connection with any use or development in relation to the project; or

(b) empowering any body to grant or refuse its consent to any such use or

development; or

(c) prohibiting any such use or development; or

(d) permitting any such use or development only upon specified terms or conditions; or

(e) regulating or permitting the regulation of any such use or development –

do not apply to the project.

Section 9.1 is supposedly constrained by section 9.2 requiring the approval of the consultants and both houses to the ‘Pulp Mill Permit’. However given the breadth of s.11 why would Gunns wait? On a simple reading of the Act, once the Act is passed, barring criminal behaviour, no Tasmanian Court can stop Gunns building the Pulp Mill on whatever design it chooses and with whatever pollution, until the Act is repealed. The only thing that would prevent them is the constitutional pre-eminence of Federal statutes, most notably the Environmental Protection and Biodiversity Conservation Act.

The only limit on what is excluded from Tasmania’s legal black-hole is that which does not ‘arise or relate’ to the Act and what is involved with or affected by criminal conduct, even the latter of which does not delay a permit being issued. Can Gunns build 22 storey housing blocks in Georgetown to house its workers? Can trucks delivering logs be dangerously overloaded? Does Gunns need to pay its contractors according to awards or contracts? Does Gunns need to abide by any permits issued? The problem is, if no action can be taken in the courts, then Gunns can completely ignore any Tasmanian law that does not constitute a criminal offence as long as Gunns’ actions arise or relate to the Pulp Mill project. Even if the permit granted under the Act is revoked, there is no legal action that can be taken to prevent the mill polluting.

In his letter to Tasmanians, Paul Lennon said “We will not allow the pulp mill to be built unless it is environmentally safe.” Paul Lennon has lied. Once this act is passed, the state government cannot prevent the building of the pulp mill on any environmental conditions without passing new legislation.

This is not an Act of Parliament, this is an act of desperation that excises the Pulp Mill from Tasmania’s legal framework. A Tasmanian legislature that passes such an Act has rescinded its right to self-government and the Bill must be refused assent by the Governor before the State is engulfed in legal anarchy.

Alex Wadsley

B.Ec (Hons) MBA

Green bid fails: Greens pulp mill motion voted down

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6 Comments

6 Comments

  1. Mike Bolan

    March 22, 2007 at 6:15 pm

    Anyone concerned about odours might care to know that Lennon’s ‘tough’ guidelines do NOT require the mill operator to take any actions to control or prevent odours. If the odours go on for 2 years (?!) then they have to hire a consultant, they don’t have to implement their recommendations though!

    Check the kraft mill guidelines yourself at http://www.rpdc.tas.gov.au/bekm/final_report, particularly Volume 2 which has the relevant information in section D.

    It’s worth a read. 5 minutes will probably put you ahead of most of our politicians.

  2. Mark

    March 22, 2007 at 10:10 am

    It is just another step in the total deregulation of the forest industries across Australia.

    The usual industry apologists will claim Australian forestry is one of the most regulated industries in the world but the regulations only exist to provide exemptions. Exemptions from pollution, threatened species, planning, appeal processes, local government, compensation, transport etc etc.

    The major parties will not challenge this development as there are too many “done deals.”

  3. Helen Tait

    March 22, 2007 at 1:01 am

    It was a landmark day in understanding the use of masquerade language when labour minister Mr Llewellyn standing by the red ocean at Burnie said emphatically that the dirty Burnie industries did not pollute. The explanation was, wait for it, because they had an exemption!

    Now, we know world wide that all paper pulp mills are badly odorous. So what exactly does a guarantee of world’s best in pulp mills mean in this Sir Humphry Yes Minister language. Maybe it’s something like how Gunns in their forest harvesting calls the trashing of steep hillsides and river gullies world’s best practice certified. Just how in the whole picture, without the people and the RPDC or major exemptions is a huge filthy mill, in the wrong place, clean?

  4. Rosinante Quixote

    March 21, 2007 at 9:18 pm

    Alex’s analysis, if correct, is frightening.

    The contact details for your local MLC are here: http://www.parliament.tas.gov.au/lc/lclist.htm.

    Each of them should be made aware of this. Many times.

  5. Brenda Rosser

    March 21, 2007 at 6:13 pm

    And keeping in mind that when these large transnational forest corporations ARE vulnerable to legislation – like the Public Health Act and fire legislation and others – it is simply not enforced.

    Fire clearings are not maintained, weeds are not controlled, water is repeatedly contaminated with dangerous chemicals, smoke chokes asthmatic residents out of their home for days, vehicles are forced off the road for lack of vision in forestry burnoffs. And so on.

    Current practice of the industry is illegal and dangerous and will remain so, but in future such contemptuous behaviour can be carried out under a much more rock-solid protective umbrella provided by the State Government. No more mere ‘turning a blind eye’. Dictatorial legislation will provide a suit of armour for any powerful TNC to do as they like.

    [Now we’re told that the funds and staff provision to compile the State of the Environment Report are nowhere near adequate and that ‘scientific data’ for this report is sort from ethically and legally-compromised bodies like Forestry Tasmania.]

    http://www.discover-tasmania.com/

  6. Tony Richardson

    March 21, 2007 at 5:09 pm

    Dear Editor

    The fundamental basis of Democracy is that leaders make and keep agreements. Tasmanians must now be fearful and sad about the Pulp Mill Crisis. Our Premier has moved beyond being autocratic. (Has he allowed John Gay’s petulance to influence his own?). His breaking of agreements, protocols, and promises have propelled us into a state of ‘laissez-faire’ (where anything goes), providing the contacts and sums are good. This week the man, who four years ago pulled down the statue of Sadam Hussein in Bagdad, has told the world that life under a dictator is preferable to life where ‘anything goes’. In Bagdad the social slide is from dictatorship to anarchy. Today our slide is from a higher base but has the same trajectory. It’s from autocracy to ‘laissez faire’. For both societies democracy is getting further away.

    Tony Richardson Castleforbes Bay

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