Image for Section 11 Again, and Again … FSC report. March Mill start?: L’Estrange

The suggestion that section 11 if the PMAA does not deliberately remove 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 in August 2008), when Premier David Bartlett said that there was a “misconception about Section 11”, then going on to say much the same as Paul Lennon and Paula Wriedt had written earlier in 2008:

“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”.
(letter to constituent by Paula Wriedt).

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 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 2009 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)  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.

The answer is because the assessment and approval process at State level was a sham and a fraud – no RPDC, no assessment of risks, 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 was 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.

In relation to the question about the role of the Australian constitution in protecting common law rights of citizens against the excesses of statute law, this only applies where the federal government has jurisdiction, not where the States have jurisdiction.  The PMAA is a State law, not a federal law. 

Section 75 (v) of the Australian constitution says that in all matters ‘in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth, the High Court shall have original jurisdiction’.

In Tasmanian law constitutional arrangements have no equivalent to mandamus as it is written in the Australian Constitution.  In October 2006 Justice Pierre Slicer said this in a section of his judgment in a case before the Tasmanian Supreme Court: “In Tasmania, Parliament has abolished the prerogative writs of certiorari and mandamus. It has provided for power of control and review through enactment of the Judicial Review Act.”

Even if it be found that Justice Slicer’s statement does not cover all eventualities under Tasmanian law, it is nevertheless true that any rights that citizens have under Tasmanian State law and the common law are susceptible to legislative action and may be taken away by Parliament.

The Tasmanian Judicial Review Act cannot fulfill the purpose in Tasmanian law that mandamus does in Commonwealth law, because as it is law enacted by the Tasmanian Parliament, it can be amended at any time or excluded from having effect in relation to other legislation, unlike Section 75 of the Australian Constitution.

This is exactly what happened with the PMAA.  Under Section 11 “no order or review may be made under the Judicial Review Act 2000… in respect of any action, decision, process, matter or thing arising out of or relating to any assessment or approval of the project under this Act”. 

In other words, a deliberate statute bar was set in place which could not be done if the PMAA was Commonwealth legislation.  In that sense the fundamental importance of Section 75 “in our democratic system” at federal level, its “special significance”, is inapplicable in Tasmania, especially in circumstances where both major political parties are as one in deliberately deciding to eliminate public recourse to the perceived alternative to mandamus that is available in Tasmanian law, the Judicial Review Act 2000.

A cursory examination of the Judicial Review Act makes it obvious why a blanket statute bar was included within the terms of the PMAA.  For example, in section 17 (Section 18 is similar) of the Judicial Review Act, it states that a “person who is aggrieved by a decision to which this Act applies may apply to the (Supreme) Court for an order of review relating to the decision” on a number of grounds, including for instance, “that a breach of the rules of natural justice happened relating to the decision”, and “that there was no evidence or other material to justify making of the decision”, and that “the decision was induced or effected by fraud”.

Just to hammer the point home, it is worthwhile making reference as well to Section 20 of the Judicial Review Act, which specifies the meaning of improper exercise of power as it applies to Sections 17 and 18 of the Act. For example an improper exercise of power is taken to include “failing to take a relevant consideration into account in the exercise of a power”, “an exercise of a power that is so unreasonable that no reasonable person could so exercise that power”, “the exercise of a discretionary power in accordance with a rule without regards to the merit of the particular case” and the exercise of a power in such a way that the result of the exercise of the power is uncertain”.

The PMAA is an exemplar par excellence of the state of governance in Tasmania, for it demonstrates beyond reasonable doubt that those who hold the reins of power, and those who aspire to replace them, currently in “opposition”, have a view, a mindset, a conviction about governance which has nothing to do with preserving the democratic rights of people under the law.

The PMAA was carefully framed.  It was quite deliberately written to ensure that any common law legal rights were obliterated as far as that could be done, and as thoroughly as that could be done, a careful attention which was diligently supported by all Tasmanian Labor-Liberal MPs, and by a majority of so-called independent MLCs (most of whom are Liberals to the eyeballs).

It still remains to be seen, of course, whether our “political representatives” have been as thorough as they have attempted to be in obliterating citizens’ recourse to legal redress in the event that the pulp mill (if ever built) damages or destroys them.  But obviously, Tasmanian politicians think they have. 

As one lawyer stated in a letter to me about the matter, “because the extent of the right to seek judicial review in Tasmania is unclear in some cases and potentially or actually negated in others by particular legislation, citizens may be left without a remedy or without a clear remedy even in the face of unlawful administrative action”.

The only potential areas where the Australian constitution may apply in relation to the pulp mill are those where there is an the interface in jurisdiction between Tasmanian law and Commonwealth law as it applies to the pulp mill.

The Commonwealth’s jurisdiction in relation to pulp mill permits applies to the pulp mill’s impact on Commonwealth waters in Bass Strait and to its impact on threatened species.  Gunns has still to meet the requirements of the conditions of permits for effluent discharge into Bass Strait according to Commonwealth law, so it may be possible to invoke Section 75 of the Australian constitution in relation to that.

Of course, if Tasmanian legislation was not overridden by Commonwealth legislation where the two jurisdictions interface, Gunns would now have its permits in relation to effluent disposal into the marine environment, as they have in all other matters not subject to federal jurisdiction. 

So, as one eminent Tasmanian human rights lawyer has pointed out to me “the questions that remain to be ultimately determined are the extent to which the PMAA excludes review under the Judicial Review Act and the extent to which the JRA precludes judicial review of administrative action otherwise than under that Act”.

But the Tasmanian Labor-Liberal accord would be very confident that such questions will not be raised by people adversely affected by the pulp mill, because there has been no provision made for base-line studies, and without those being done it would be almost impossible to seek legal redress.

To “truth” about Section 11 of the PMAA will only be known if it is ever tested, but in the absence of base-line studies, and in the absence of a pot of gold, who is going to challenge it?  Base-line studies for dioxins, for a start, cost more than $20,000.

So let’s not be pedantic about the true intent of Section 11 of the PMAA.

First published: 2011-02-08 03:01 AM

Karl Stevens: FSC Update Meeting On Tasmanian Certification Progress. UTAS Launceston February 8 2011.

The meeting was chaired by the affable FSC Australia CEO Michael Spencer.

Due to the rapid staff turnover Gunns was represented by the efficient Suzette Weeding.

Her boss Bryan Hayes of Gunns Forest Products was also there.

Because Gunns had decided to ‘segregate’ the mainland operations from the Tasmanian ones, after receiving the ‘gap analysis’ (corrective actions) resulting from the pre-assessment made in July 2010, a new pre-assessment is now required.

That new pre-assessment will be looking at the entry level ‘controlled wood’ status that Gunns seems to be struggling to achieve. It will start in April this year, and will be undertaken by the Rainforest Alliance again.

They were represented by Melbourne-based Anita.

Gunns hopes to start the full FSC Forest Management Certification in 2012 (for Tasmania). You would think Gunns pre-assessment would go a little easier second time around.

Suzette stressed that the controlled wood certification was only for the 100,000 hectares of native forest Gunns still owns in Tasmania. They have already sold 28,000 hectares of native forests.

There was a very interesting dynamic at play at the meeting. Although quite a few ‘industry types’ were there, not one asked a single question. They all spent 2 1/2 hours looking like planks of wood.

All of the questions came from stakeholders who were part of the ‘community’. Tim Morris was there as well as people from TAP, The Western Rivers Group and Timber Workers For Forests. Ms Weeding answered all questions and many of them were technical ones concerning post 1994 plantations, forest conversions, inherited conversions and partial certification. She stressed that Gunns are fully committed to the FSC process.

Norske Skog and SFM Forest Products commenced their FSC process 18 months ago and both finished their full FSC Forest Management applications in December 2010. No results have been announced yet.

Katie represented Norske Skog. They are seeking certification for their plantation estate but they also need other suppliers who they are encouraging to gain ‘controlled wood’ status. She mentioned the ‘Triabunna resource’ which is apparently softwood owned by Forestry Tasmania. Tim Morris was right onto it and I felt Katie had let slip something that was not supposed to be known.

That means Forestry Tasmania is being forced into FSC by their own customers. So much for PEFC and AFS.

There was some FSC related business such as the Pesticide Advisory Group for Australia, and a fund raising push for a new FSC project. The matter of conflict of interest came-up at this point with Katie quipping that they felt it improper to donate to FSC.

• Sue Neales, Mercury: Pulp mill start aim next month

GUNNS Limited chief executive Greg L’Estrange has earmarked mid-March as the likely start date for the company’s Tamar Valley pulp mill.

Mr L’Estrange told the Mercury yesterday the $2.5 billion project was “closer than it had ever been” to a financial green light and construction start.

March is the deadline for the Federal Government to give an unconditional environmental approval to the pulp mill’s right to operate.

The Gunns chief executive confirmed this was why a series of letters had been sent to pulp mill opponents and forestry organisations in the past fortnight, offering detailed new briefings about the controversial project.

The letter, written by Mr L’Estrange and sent to organisations such as TAP into a Better Tasmania (TAP) and Pulp the Mill Inc, said Gunns was seeking a “cuddly” social licence to operate.

“Gunns recognises community concern and that we need to be more transparent,” Mr L’Estrange said yesterday.

“We’ve heard what the community is saying and as a modern company we want to embrace that; this is now a different project to the one people had concerns about.”

Mr L’Estrange said the main design changes were that the pulp mill would use 40 per cent less chlorine dioxide in the pulp-bleaching process than previously proposed and only wood grown in plantations.

Full Sue Neales story HERE