PETER HENNING, Subsequent to: Tasmanian political rot: the PMAA revisited
The letter written by Premier Paul Lennon to Barnaby Drake in December 2007 about Section 11 of the PMAA was virtually replicated by one written seven months later by the Minister for Economic Development and Tourism, Paula Wriedt, in July 2008. Wriedt had this to say to some Tasmanian constituents who sought clarification about Section 11:
“I am advised that clause 11 of the PMAA makes it very clear that rights of appeal are only limited in relation to the assessment and approval of the project under the PMAA. The limitation of appeal rights does not extend to any other matters that may arise after assessment and approval”.
The suggestion, implicit in Barnaby Drake’s release of Lennon’s letter at this time ( Paul Lennon on Section 11 ), that the letter undercuts the notion of the deliberate removal of citizens’ appeal rights if they are damaged or destroyed by the pulp mill, has been raised before. This occurred most notably during the parliamentary debate about the Greens’ motion to rescind the PMAA (when the House of Assembly sat in Launceston last year on 27 August), when Premier David Bartlett said that there was a “misconception about Section 11”, then going on to say much the same as Lennon and Wriedt had written.
At the time of Wriedt’s letter finding its way into the public domain, but before the August sitting of the lower house of Parliament in Launceston, I wrote this:
What this letter confirms is that there are no protective mechanisms at all within the legislation (the PMAA) for people, their health, their property, their employment and business activity, or anything else, if the pulp mill ultimately has deleterious influences. Wriedt’s letter is a statement of the Bartlett government’s stance on the legal position of all core affected constituencies except Gunns. They are all on their own, left out of consideration by the legislature. Any legal redress, if sought, is a matter for individuals to pursue.
Wriedt’s letter is an insight, not only into the failure of the PMAA as a policy document which is just and balanced in the public interest, but also into the cynical mindset of a bipartisan political culture which places little or no inherent value in representing the legitimate interests of human communities.
Since that time, of course, three West Tamar landowners, themselves distressed about the implications of Section 11 in relation to their legal rights if the pulp mill destroyed their businesses, launched a Supreme Court action asking the government for the reasons why they granted a permit for the pulp mill to be built in the Tamar Valley. In July this year Justice Peter Evans dismissed their action, on the grounds that Section 11 prevented those questions from being answered. In response to the decision Tasmanian UTAS law academic, Tom Baxter, said that it removed the rights of any citizen to obtain information about provisions placed on the mill.
Also since that time, constitutional lawyer Michael Stokes has written a very detailed legal opinion that the PMAA permit is invalid because the assessment was not completed and that Section 11 does not prevent a challenge on that ground.
In relation to both these matters (the West Tamar landowners action and the Stokes opinion) it is to be noted that the Tasmanian government was vigorous in its opposition.
It is also worthwhile placing the actual wording of Section 11 beside the wording of the Lennon and Wriedt letters:
“(A) person is not entitled to appeal to a body or other person, court or tribunal …or no order or review may be made under the Judicial Review Act 2000… or 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 (pulp mill) project under this Act”.
One question is: Do what Lennon and Wriedt have written (and what Bartlett has said) fit the wording of the legislation? Where does it specify clearly where the limitation on appeal rights ends? It certainly doesn’t say, in any way, shape or form, that appeal rights are limited to the assessment and approval process, and do not apply more broadly. Does the phrase “arising out of or relating to any assessment or approval” mean “only during the assessment and approval” process?
Another question, and to my mind the most important, is the question about the reasons for the statute bar in the first place. Justice Evans has already shown that it is not possible to get answers to that question through the court system at the highest level.
But you don’t need to be Einstein to find answers to that question. They’re as obvious and numerous as confetti at a wedding. The assessment and approval process at State level was a sham and a fraud – no RPDC, no assessment of risks, social-economic-environmental, no baseline studies, no evaluation of expert independent advice, abdication of due process, lies and cover-ups. That’s just the tip of the iceberg of reason for Section 11 of the PMAA.
One final point. The Lennon-Wriedt-Bartlett spin is deliberately designed to convey an impression of preserving people’s rights, while removing them. “Look”, they are pretending, “we’ve done you a democratic favour”.
So, for example, when the pulp mill’s up and running, and people seek legal advice if air pollution or smell from the mill adversely affects their health or their business, without proper baseline studies and without any assessment guidelines being established legislatively (unlike, for example, where similar and smaller mills have had these problems in Chile), the basis for appeal has already been undermined.
The letters of Lennon and Wriedt are deliberately deceptive red herrings, and the more contemptible for that.