Michael Stokes

THE other week, when talking to Tim Cox on the Morning Talkback, Prof Richard Herr suggested that parliament, when voting on the pulp mill, is doing so as a planning authority and must act like one. It is clear that when exercising their powers over development, members of a planning authority are required by law to take into account nothing but the relevant environmental and planning considerations and are not subject to dictation from outsiders, such as party leaders.

Prof Herr is clearly right. When Parliament votes on the pulp mill, it will not be exercising its normal legislative powers as parliament of Tasmania, but will be exercising a statutory power of approval conferred on it by section 7 of the Pulp Mill Assessment Act 2007, which reads:
Approval of project

(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.

(2) Each House of Parliament, by resolution, is to accept or reject the Pulp Mill Permit within 5 sitting-days from the day on which it is laid before the House.

Four features of the section make it clear that in approving the pulp mill, the parliament is not acting in its normal legislative capacity but is exercising a statutory power conferred on it by the Act. Firstly, parliament can only exercise the power to approve if the consultant, SWEKO PIC has recommended that the project should proceed. Parliament has no power to approve under section 7 if SWEKO PIC recommends that the mill not proceed or reports without making a recommendation. The legislative powers of parliament cannot be subject to any such limitation on their exercise. Secondly, under section 7, parliament may approve the project by a resolution of both houses rather than by enabling legislation. Thirdly, parliament only has five sitting days under section 7 in which to exercise the power. Parliament’s power to legislate is not subject to any such time constraints. Fourthly, under section 8 of the Act, a resolution of both houses rather than legislation, gives effect to the permit under the Act, permitting the development to proceed.

As the power to approve the pulp mill is a power conferred by statute to approve or refuse development, it is arguable that the normal legal controls over the exercise of statutory powers apply to it. These controls include the requirement that the decision maker must exercise the power personally rather than act on the orders or requests of another person and that the decision maker must only take into account relevant considerations, such the planning and environmental merits of the proposal, rather than the political consequences of an approval or refusal or the wishes of the government. Because of the political nature of the decision maker, parliament, and because it is elected by and responsible to the people, the law will allow some leeway in the application of principles such as the decision maker must take into account relevant considerations and ignore irrelevant ones, but these principles do apply.

If the normal legal controls apply, it is arguable that it is inconsistent with parliament’s role under section 7 for the party whips to apply and for members to be forced to vote on party lines. A member who felt constrained to vote on party lines is seen as acting on the orders of another person and as having failed to exercise the power personally. A member who was not constrained to vote on party lines but took into account the wishes of the party or of the government may have taken into account an irrelevant consideration because the wishes of the party or the government are not planning or environmental considerations and are unrelated to the merits of the proposal. It would clearly be wrong for a local council to take into the account the wishes of the government or of a political party in determining a development application. Those wishes should be equally irrelevant where the power to determine an application is vested in the parliament.

The fact that some members of parliament may act on the orders of others or may take into account irrelevant considerations does not necessarily mean that parliament has failed to exercise the power properly. It is the parliament as a whole which has to make the decision and a failure by some of its members to act according to law does not necessarily mean that parliament has failed in its legal duty. Where a statutory power is vested in an organization consisting of a number of members such as a council or a parliament, it is not clear when improper behaviour on the part of some members of the group can be attributed to the organization as a whole. The courts have considered a number of answers to this question, varying from strict tests such as the organization acts improperly if one of its members acted on orders or took into account irrelevant considerations to more lenient tests such as an organization only acts in breach of its legal duties if a majority of those who were in favour of the proposal acted wrongly. Some judges favour the but for test, in which the decision stands unless it can be shown that the result would have been different ‘but for’ the improper behaviour of some members. So even if it could be proved that some members of parliament acted on orders from the whips or took into account irrelevant considerations, such as the wishes of the party, that does not necessarily mean that parliament has acted improperly or failed in its duty.

The issue is made more complex by the fact that in the case of parliament, the persons issuing orders in order to enforce party discipline are themselves members of the organization which has the legal responsibility of making the decision. It is arguable that the enforcing of party discipline by the members themselves is part of the normal process of parliamentary decision making and does not necessarily preclude a proper consideration of the issues. Much might depend on the way in which the issue is handled. For example, if Cabinet decided to endorse the pulp mill and imposed its decision on the Parliamentary Labor Party without a meeting, so that back benchers had no input into the decision, they could be said to have acted on the orders of another. However, if the decision were made at a party meeting in which all back benchers took part, it is arguable that that is a normal part of parliament’s decision making processes, involving no dictation to some decision makers by others.

But if the party meeting can be regarded as part of the normal parliamentary decision making process, rules regarding the exercise of statutory powers apply to that meeting. Hence, its decision must be on the merits of the proposal. If the meeting acts under dictation or takes into account irrelevant considerations, its failure may mean that the parliament fails to exercise the statutory power properly.

Section 11 of the Act may rule out any challenge to the parliament’s decision in the courts. However, it does not entail that the legal restraints on the exercise of the statutory power referred to above do not apply. It simply removes the oversight of the courts and entrusts parliament with the responsibility of applying those limits to itself. By trusting parliament in this way, the provision does not lower the legal standards but imposes an additional responsibility on parliament to act properly.

It is clear that the Act imposes on individual members of parliament a duty to act on the merits of the proposal. The State Policies and Projects Act definition of ‘integrated assessment’ in section 16 provides a good guide as to what they may take into account in making the decision; “the environmental, social, economic and community issues relevant to that project”. Because of the nature of parliament, these considerations should be broadly interpreted, it is clear that other considerations are irrelevant. Although a failure to comply with the legal requirements by a small number of members may not jeopardise the decision, failure to do so by a large number of members or by the parliament as a whole could do so.

Assuming that parliament did fail to exercise the power properly, it is not clear that the courts would intervene to set the decision aside. Normally, the courts will set aside a decision made in the exercise of a statutory power if the decision maker acted on the orders of another or took into account irrelevant considerations. However, this is not a normal case as it is unusual to vest statutory powers of this sort in the parliament itself. They are normally exercised by local government or government agencies such as the RPDC. The courts may conclude that the fact that the power has been vested in parliament indicates that the power is to be exercised politically rather than in accordance with legal controls of the type mentioned earlier. Some judges have accepted that where a power is to be exercised politically, the principle that the person exercising the power must not act on the orders of another does not apply and the official exercising the power may be bound to exercise it in accordance the wishes of the government. Applying that argument to parliament’s exercise of a statutory power, it is arguable that the power should be exercised politically rather than legally and that the principles outlined above do not apply. Courts have split on these issues in the past and it is not clear how they would decide, especially where the statute gives the decision making power to parliament itself.

The courts may decline to consider the case at all on the grounds that they should not review the exercise of statutory powers vested in parliament because they are subject to political rather than legal control. There is no authority on this point that I know of because powers of this type are rarely exercised by parliament. However, it is possible to draw an analogy with statutory powers vested in the Governor or the Commonwealth Governor-General. For a long time, the courts would not review the exercise of these powers on the grounds that they were political powers exercised on the advice of Cabinet and to be controlled politically rather than legally. In about 1980, the courts changed their minds on this issue and now will review the exercise of statutory powers vested in the Governor or the Governor-General. The courts now decide whether to review or not by looking at the nature of the power and the subject with which it deals rather than the person who exercises it. For example, courts are much more reluctant to review national security powers than powers over development.

Applying these principles to this case suggests that the courts may review here because they are normally will review the exercise of development approval powers. The fact that this power has been vested in parliament may not be seen as relevant.

The second barrier to review is in section 11(1) of the Pulp Mill Assessment Act, which reads:
(1) Subject to subsection (3) 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 any assessment or approval of the project under this Act.
This section is designed to prevent any legal challenge to the assessment or the approval of a pulp mill under that Act. However, the words ‘under the Act’ are interpreted as not ruling out all legal challenges but only challenges to decisions, which although they may be flawed are properly seen as decisions ‘under the Act’. Attempts to exercise the powers given by the Act which are so flawed that they cannot properly be seen as having been made under the Act at all can still be challenged. Courts describe decisions of the first type as ‘within jurisdiction’ and decisions of he second type as outside jurisdiction or as involving ‘jurisdictional error’.

There has been a tendency in Australia to define ‘jurisdictional error’ very broadly. There is High Court authority for the proposition that taking into account irrelevant considerations is jurisdictional error. On this view, if the views of the government on the pulp mill are irrelevant considerations, parliament may commit a jurisdictional error if it take them into account in exercising the approval power under section 7. If that is the case, that error may be reviewable despite section 11.