In a presentation at the Environment Tasmania Forum in Launceston on August 20, 2008, political scientist Dr Fred Gale, of the University of Tasmania, said this:

“(T)he pulp mill is an example of bad environmental governance and should not proceed.  The review of the pulp mill under the Pulp Mill Assessment Act resulted in inadequate scrutiny of the range of risks the pulp mill poses to the Tasmanian economy, environment and community.”

This of course is not news to many Tasmanians, and as Dr Gale explained, our expectations that “liberal democratic governments should be, and are in fact, capable of acting in the general public interest”, are in stark contrast with a different reality, that of the state “acting at the behest of powerful societal interests”, in this case business interests.

The solution to this dilemma — that is, the dilemma of how to make democracy work and ensure sustainable development at the same time — lies in understanding that the current “liberal democratic institutions” are inadequate for the task.  In particular, there is need for reform which ensures “the full participation of … constituencies … representing economic, social and environmental interests” in policy formulation, which prevent the dominance of one interest “masquerading as the public interest”.

Such a program of reform goes well beyond what David Bartlett has articulated in his “ten-point plan to strengthen trust in democracy”.

In fact, there can be no “strengthening of trust in democracy” and there can be no faith in a “commitment to the principles of transparency and due process”, also espoused publicly by the Premier, until the Pulp Mill Assessment Act is revisited, and revisited in a way which restores attention to the constituencies and interests overlooked or ignored by the legislation.

In particular, there can be no restoration of trust until the Tasmanian people know the full story about the preparation and drafting of Section 11 of the Act, and until the whole section is rescinded.  Even a summarized version of Section 11, reproduced below, shows clearly the thoroughness of the attempt to place legal barriers before people who could be adversely affected by anything “arising” from the assessment or approval of the pulp mill.

“(A) person is not entitled to appeal to a body or other person, court or tribunal …  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”.

In the context of our perceptions of responsible government and political representation, the question posed here in relation to the PMAA in general and Section 11 in particular is a freedom of information issue in one sense, but goes beyond that.  The question is this.  Was there a role played by Gunns in determining the final form of the PMAA? 

The Tasmanian people have a right to know whether Gunns had any influence, or even control, over what was written into all sections of the Act, but this is of particular importance in relation to Section 11.

Section 11 is particularly significant because it strikes at the heart of the democratic foundations of our political system.  The clear intent of this section of the PMAA is to prevent legal redress.  It deliberately excludes right of appeal to the court system, denies any notion of natural justice or access to common law, and in so doing eliminates fundamental rights enshrined in any normally defined separation of judicial and political powers in a political democracy.

What is known is that after Gunns withdrew from the RPDC process the company had access to the draft legislation well before it was presented to Parliament, and that they worked closely with DPAC for some time on the details of the legislation.  This means it is not known to what extent the legislation is a mirror-image of Gunns’ wish list, which in itself is a clear travesty of democratic process.

It is one thing for government policy to be dictated by corporate power and interest, however unhealthy and destructive to the democratic fabric and to competing social, economic and environmental interests that might be.  It is entirely another matter if corporate power has the capacity to instigate or to influence the inclusion of statute bars in legislation.

The point is that the Tasmanian people have a right to know whether or not all their parliamentary representatives (Liberal and Labor en bloc in the House of Assembly, minus Terry Martin and Lisa Singh, and Labor and a majority of “independent” members of the Legislative Council) who voted in support of Section 11, actually voted for legislation prepared, or instigated or suggested or controlled by a corporate interest.

Again, it is one thing for politicians to desert their representative responsibilities, as those who supported Section 11 did, because of some adherence to cosy and comfortable “caucus solidarity” arrangements, whether from misplaced party loyalty, incompetence, cowardice, complacency or sheer ignorance.  It is something else altogether if they voted for legislation prepared outside the acceptable normal parameters of the public service.

The problem for the Bartlett government, if they are to “clean up the mess”, as promised, is that the Premier himself, and his whole cabinet, without exception, supported Section 11.  Their current mind-state about this is clearly reflected in a letter dated July 11, 2008, well into Bartlett’s premiership, written by the then Minister for Economic Development and Tourism, Paula Wriedt, to constituents who sought clarification about the meaning of Section 11.  Wriedt had this to say:

“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”.

What this confirms is that there are no protective mechanisms at all within the legislation 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. 

It is very appropriate that the Tasmanian Parliament will be sitting in Launceston in the week that Kim Booth introduces his private member’s bill to repeal Section 11 of the PMAA.  Section 11 attacks the democratic rights of all Tasmanians, but none more so than those living in the greater Launceston region extending into the Tamar Valley and surrounding districts, both inland and coastal.

The response of both the Bartlett government and the Hodgman opposition to this bill will clearly indicate if the Labor and Liberal Parties are really interested in “trust in democracy”, transparency and due process, “tough” new codes of conduct, an ethics commission and so on.

More importantly, in my view, is whether the premier’s commitment to strengthen Freedom of Information will allow real transparency to be provided about whether Gunns had a role in drafting the PMAA, especially Section 11.  It is essential that this occur if Bartlett’s “suite of measures” to “clean up the mess” is to have any credibility, because there cannot be public trust that parliamentary democracy actually exists in practice if legislation is in force which was created beyond the proper parameters of the public sector’s control.

Peter Henning

 

 

Peter Henning

It is one thing for government policy to be dictated by corporate power and interest, however unhealthy and destructive to the democratic fabric and to competing social, economic and environmental interests that might be.  It is entirely another matter if corporate power has the capacity to instigate or to influence the inclusion of statute bars in legislation. The point is that the Tasmanian people have a right to know whether or not all their parliamentary representatives (Liberal and Labor en bloc in the House of Assembly, minus Terry Martin and Lisa Singh, and Labor and a majority of “independent” members of the Legislative Council) who voted in support of Section 11, actually voted for legislation prepared, or instigated or suggested or controlled by a corporate interest. Again, it is one thing for politicians to desert their representative responsibilities, as those who supported Section 11 did, because of some adherence to cosy and comfortable “caucus solidarity” arrangements, whether from misplaced party loyalty, incompetence, cowardice, complacency or sheer ignorance.  It is something else altogether if they voted for legislation prepared outside the acceptable normal parameters of the public service.