Alex Wadsley
If this is the case, Gunns’ attempt to circumvent the previous assessment process and achieve a short-cut may hit a brick wall. Irrespective of the political machinations, the current Minister has little power to over-rule his predecessor and attempting to do so will simply create an opportunity for legal challenge and delay.
Once again I must preface this comment by stating that I am not a lawyer, having chosen to complete Honours in Economics rather than a combined Economics-Law degree. Following Legal Anarchy I would like to thank the Legislative Councillors for their amendments to section 11 and in particular to Don Wing for his choice of words.
The Environmental Protection and Biodiversity Conservation Act is one of Australia’s most important environmental protection legislations. Its principle objectives are to protect threatened species, as well as other internationally recognised environmental issues such as World Heritage Areas and preserving wetlands. One of the key features of the legislation is the restrictions on the ability of Ministerial decisions to be altered once made.
If this is the case, Gunns’ attempt to circumvent the previous assessment process and achieve a short-cut may hit a brick wall. Irrespective of the political machinations, the current Minister has little power to over-rule his predecessor and attempting to do so will simply create an opportunity for legal challenge and delay.
Gunns indicated that it wanted to withdraw from the RPDC process on the 14th March, on the basis of commercial grounds given the timeframe that the RPDC had indicated for the conclusion of the process. This ‘withdrawal’ was the starting point for the opprobrious Pulp Mill Assessment Bill and the demolition of due process in Tasmania’s planning laws. However, the federal approval process is arguably unaffected by these shenanigans, so Gunns may have achieved nothing other than global recognition of its unwholesome influence over state politics.
Gunns made a referral to the EPBC with respect to the Tamar Pulp Mill on the 15th August 2005. On October 5th 2005, Sen Ian Campbell determined that it was a controlled action, and on October 26th he determined “the approach that must be used for assessment of the relevant impacts of the action described in the schedule is assessment by an accredited process”.
According the schedule, “the proposed action is to construct and operate a bleached kraft pulp mill at Long Reach (near Bell Bay on the Tamar estuary), northern Tasmania … the accredited process is an Integrated Impact Assessment under the Tasmanian State Policies and Project Act 1993”.
Gunns supposedly withdrew their referral on the 28th March 2007 and submitted a new proposal on the 2nd April 2007. The only difference in the description of the action is “and ancillary chemical production and infrastructure” which was always part of the original proposal. All the supporting material with the submission was the same documentation that has been submitted to the RPDC. Thus the project is clearly the same project, with the same actions and impact. The change of referral is merely an administrative contrivance to obtain an alternative ministerial ruling.
Gunns is now claiming that the action is no-longer a “controlled action”, however under section 78.1 of the Act: “The Minister may revoke a decision (the first decision) made under subsection 75(1) about an action and substitute a new decision under that subsection for the first decision, but only if:
(a) the Minister is satisfied that the revocation and substitution is warranted by the availability of substantial new information about the impacts that the action:
(i) has or will have; or
(ii) is likely to have;
on a matter protected by a provision of Part 3; or
(aa) the Minister is satisfied that the revocation and substitution is warranted by a substantial change in circumstances that was not foreseen at the time of the first decision and relates to the impacts that the action:
(i) has or will have; or
(ii) is likely to have;
on a matter protected by a provision of Part 3; ”
There has been no new information or substantial change in circumstance relating to the impacts of the action, as all the material provided in support of the referral was produced as part of the RPDC process. This is not to mention the many errors and erroneous conclusions in Gunns’ submission, all of which would have been reviewed in Public Hearings by the RPDC. All that has changed is the administrative contrivance of a new referral.
If such farces were allowed, then every time somebody received an adverse decision by the Minister, they could simply ask for a new one by ‘tweaking’ their project description. The only ‘substantial change’ is that Gunns has decided that the RPDC process is no longer in their commercial interest and the Tasmanian Government is proposing legislation to help them override it. This changes the impact of the Pulp Mill not one jot.
The second component of the Minister’s decision is the assessment process. In October 2005, Minister Campbell decided that the Pulp Mill should be assessed under an accredited process, that is the RPDC. There are no provisions in the EPBC Act for the Minister to change that decision, although there are provisions for changing decision relating to other assessment processes, for example upgrading an Environmental Impact Statement into an Inquiry (under section 90).
The RPDC process for the development of an Integrated Impact Statement has equivalent powers to that of an Inquiry, the highest level of federal assessment. Both have Commissioners and inquisitorial powers, therefore once such a process is determined upon, it is not unreasonable that any change is precluded.
It seems that the only grounds for the Minister changing the previous decision with respect to the assessment process is State Parliament’s declassification of the project as a Project of State Significance (under the Pulp Mill Assessment Bill which has not yet been passed). This is the state tail wagging the federal dog. Paul Lennon and Gunns frustrating the Commonwealth accredited assessment process.
Our Constitution clearly states in section 109 that the laws of the Commonwealth should prevail of those of the States, and that state laws are invalid to the extent of any inconsistency. One might therefore ask a constitutional lawyer, or more importantly the High Court of Australia, whether the Tasmanian Pulp Mill Assessment Act ought to be read down to the extent that the EPBC Act, and the ministerial ruling under it, are allowed to function as intended and as drafted by the Federal Parliament.
If this is the case, then Gunns should comply with the original Ministerial direction, return to the RPDC, or else let the project lapse.
Ignoring the substantive issues of the environmental impact of the mill on forests, threatened species and the environment as well as the gross failure of Gunns to document it, there would appear to be grounds for an appeal to the Federal Court and possibly High Court if the Minister takes any course of action other than reiterating the decision of his predecessor. That is, that the project is a controlled action that must be assessed by the RPDC.
Given the apparent willingness of the Wilderness Society and other groups to take legal action, one questions the commercial wisdom of Gunns’ withdrawal from the RPDC process on the basis of delay. If there is a legal challenge, then this will cause a delay to whatever federal approval process is eventually determined. As an example, Bob Brown’s Wielangta trial began in December 2005 with judgement given in December 2006 and that decision is now being appealed.
A final decision before November 2007 or even January 2008 would be highly optimistic.
Alex Wadsley
