Elements of process
Integrated assessment against publicly negotiated standards with public hearing into compliance with standards.
Approval – State Minister and Commonwealth Minister under EPBCA. Commonwealth accept State process

Importance of process
Model of capitalism – move from mixed economy to regulatory economy.
1.More and more functions entrusted to private enterprise.
2.Goal of private enterprise is to maximise profits – look after share holders who are seen as major stake holders in companies over workers and public
3.Government ensure this works in public interest through regulation. Government’s role is to regulate private action in public interest.
4.If regulation breaks down, system breaks down. Its justification depends upon even handed relationship between government and business. But private companies will always try to capture government and use influence over government to enhance private profits at expense of public – public are loser.
5.Tasmania – continual fall back to older model of mercantilism – government subsidising of private investment.
6.Public loses in 2 ways - Public assets are diverted into private hands
WE get businesses to which government is committed and which cannot survive without continual public subsidy.

Special processes are subsidy gained by access to government and exercise of power
Reduce costs of process and rigour of assessment
Only big players have influence to gain this type of subsidy. Small players cannot do so.
Unfair to small players.

Fast tracking
Reduce public input:
1.Less time to assess new information provided by Gunns and not yet released by RPDC;
2.Probably no public hearings.
It is difficult to see how fast tracking can be achieved in any other way but by reducing public input because that is a slow process, especially if it leads to hearings

Why reduction in public input is wrong:

Breach of government commitment to public – Objective of State planning system –  In all planning legislation, such as LUPAA, State Policies and Projects Act etc – is to encourage public involvement in resource management and planning.
Benefits of public involvement
transparency in planning
Democratic
Testing of accuracy of EIS. EIS is prepared by company and is basis for approval and conditions. Public input enables accuracy of EIS to be tested and determined.

For example—Errors discovered in Gunns’ EIS
1.September 2006 – Gunns admits error in underestimating toxic emissions from mill
2.November 2006 – CSIRO disputes Gunns air emission data – ie data about air pollution

Long term implications
RPDC assessment of State policies is dead because all large developers will now ask for bar to be lowered in their case. Much harder now for State to refuse.

Need for fed government approval under EPBCA
Feds must approve development under EPBCA. If Tas process is not one which is accepted as basis for federal decision making under that Act, feds must assess for themselves. There are 4 federal assessment processes with varying degrees of rigour.

RPDC process under State Policies and Projects Act is accepted for Commonwealth purposes as is assessment under EMPCA under bilateral Commonwealth State agreement of 12/12/2005. Commonwealth does have power to accept other State assessment processes on a one off basis; section 87(1)(a) and (4) of EPBCA. It is important that the fed govt not to accept some bodgy process invented for this development and conducts a proper assessment itself.

For Commonwealth to accept State process as a one-off, the process must ensure that the relevant impacts of the action (the pulp mill) are adequately assessed. The Commonwealth Minister has a legal duty to ensure that this is the case before accepting the State process.
Otherwise, Commonwealth has to assess itself.

If Commonwealth does accept this as a one off, it weakens the system of bilateral agreements under which it accepts State assessment processes for Commonwealth purposes. That system allows Commonwealth to ensure that State assessment processes are rigorous and effective. One off deals like this one undermine that system by encouraging States to ask the Commonwealth to accept special one off processes for favoured developers with all the implications of that for rigour and for proper open processes. The Commonwealth must be pressured to hold the line and insist on its own proper assessment.

Michael Stokes
Law School
University of Tasmania

Michael Stokes

One off deals like this one undermine that system by encouraging States to ask the Commonwealth to accept special one off processes for favoured developers with all the implications of that for rigour and for proper open processes. The Commonwealth must be pressured to hold the line and insist on its own proper assessment.