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 A Tasmanian legislature that passes such an Act has rescinded its right to self-government and the Bill must be refused assent by the Governor before the State is engulfed in legal anarchy.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
