Neil Smith

It is easy to imagine a bevy of bright-eyed Parliamentarians turning up one sunny morning to have their say on the Pulp Mill as promised, only to have our friend Paul stand up and say “sorry guys, you can talk about it if you like, but that won’t have any effect on the approval, SWECO PIC’s already sorted that out”.

( Latest: Mercury, Saturday Outcry at federal mill study )
The Pulp Mill Assessment Act 2007 received Royal Assent and came into operation on April 30 this year. Described as “Gunns Dream Bill” by Legislative Council President Don Wing, it is one of the most amazing pieces of legislation enacted in recent times. It is short, straightforward, and codifies its designers’ intentions down to a tee — guaranteeing that virtually nothing can go wrong with the grand plan to get Gunns Pulp Mill at Long Reach up and running (barring intervention by the federal Government under the EPBC Act).

One of the often-cited objectionable features of this Act is Section 11, which makes it virtually impossible to mount a legal appeal against “any action, decision, process, matter or thing relating to any assessment or approval of the project under this Act”. This is not, however, the section I want to emphasise in the present article. I think somewhat more interesting is the mechanism for approval of “the project”, which is worth a little analysis.

Section 4 of the Act reads (in part):
4. Assessment against guidelines
(1) The Minister is to appoint a consultant to undertake an assessment of the project, subject to subsection (2), against the guidelines.
(3) After undertaking an assessment of the project under subsection (1), the consultant is to report to the Minister, based on that assessment, that —
(a) the project should proceed; or
(b) the project should not proceed.

The “guidelines” of course are the infamous “Recommended Environmental Emission Limit Guidelines for any new Bleached Eucalypt Kraft Pulp Mill in Tasmania”, which don’t apply specifically to a mill in the Tamar Valley and don’t deal with the pulping of pine. And, most famously, they don’t need to be met. Subsection (2), omitted for brevity, requires the consultant to “take into account” certain material, quite a lot of it actually, because the Legislative Council managed to amend the Bill to include the documents received by the RPDC for their now defunct assessment in this clause. But what “take into account” actually means is anyone’s guess. The consultant is not required to tell the Minister or anyone else in what way the material was taken into account. All the consultant has to do is specified by subsection (4):

(4) If the consultant reports to the Minister that the project should proceed, the consultant is, in his or her report, to –
(a) state whether or not the project complies with the guidelines; and
(b) provide reasons as to why the project should proceed; and
(c) recommend matters to be considered in the conditions that should apply to the project.

(4)(a) shouldn’t use up too much of the consultant’s time. A simple “no” would do. It’ll be more interesting to read the “reasons” under (4)(b), if the Minister ever lets us see them. There could be a bit of jumping through hoops required to come up with a paragraph or two here.
But maybe even more interesting is that the consultant doesn’t “recommend”, he or she “reports”. The Act appears not to give anyone else any say in the matter, not the Minister, and not either House of Parliament. Because when we get to section 7, we see that
7(1) The project is approved if –
(a) the consultant reports to the Minister under section 4(3) that the project should proceed; and
(b) each House of Parliament, by resolution, accepts the Pulp Mill Permit.

The “Pulp Mill Permit” is defined elsewhere in the Act, and it is essentially a collection of the permits and licences which would normally be required for an industrial project, including a building permit from the Georgetown Council, a permit to operate wharf facilities, and so forth. One wouldn’t expect it to be overly contentious.

But by specifically providing that each House of Parliament has to resolve to accept “the Pulp Mill Permit”, section 7 can be read to mean that Parliament, in contrast, has no role whatsoever in connection with the more important matter — the consultant’s report. The fact that it is termed throughout the Act as a “report” and not a “recommendation” only further supports this view.

It is easy to imagine a bevy of bright-eyed Parliamentarians turning up one sunny morning to have their say on the Pulp Mill as promised, only to have our friend Paul stand up and say “sorry guys, you can talk about it if you like, but that won’t have any effect on the approval, SWECO PIC’s already sorted that out”.

Neil Smith
Greens candidate for Legislative Council division of Pembroke
South Hobart.