LOOK away! Look away!  Look away!

“Look away”, the embodiment of political cynicism, is the bleak and stark reality of political practice in Tasmania now, and nowhere is this more apparent than when there is clear and obvious conflict between the public interest and corporate-private sector interests, and nowhere is this more clear than in the on-going and on-going Gunns’ Tamar Valley pulp mill saga.

“Look away”, in its most usual modern meaning, signifies to know and understand but to pretend not to for whatever reasons, or to carefully and deliberately avoid seeing a nasty or uncomfortable reality, to affect obliviousness to what is happening, to ignore it, to put it beyond the realm of consciousness. 

It’s a bit like saying “we did not know what nobody could deny.”  (Naomi Klein, The Shock Doctrine, 2007).  But to “look away” carries a range and depth of moral ambiguities, of degrees of seriousness in human frailty, well exemplified by reference to perhaps the most well-known use of the phrase in Daniel Emmett’s famous 1859 song Dixie.  Emmett meant to convey a yearning for home from a distant place, a looking away from the here and now to a place well-known and loved, but that meaning was politicized and demeaned almost as soon as his song was written.

“If I had known to what use they were going to put my song I will be damned if I’d have written it”, was Emmett’s response to its use by the Confederate forces in the American Civil War as a rallying call, to promote the retention of slavery as intrinsic to the political, economic and social system of the southern states.. 
 
The point is that when a political system “looks away”, when that becomes the shared preference, the shared group agreement, the rationalized majority opinion and the articulated propaganda for action, injustice has become institutionalized. 

That is what has happened in the Tasmanian polity, throughout the parliamentary Labor and Liberal parties and among like-minded independent politicians. 

This has now been given (yet further) damning illumination by Environment Minister Peter Garrett’s decision on January 5, 2009.  Public consensus for some months now (at least since Garrett provided Gunns with a time extension from the earlier deadline of September 30, 2008, to complete the 12 outstanding planning modules (of 16) required for federal approval of the Tasmanian pulp mill project), has been that Garrett would either grant another extension or approve the project. 

Garrett did both, while successfully creating the impression that he was concerned about the impact of effluent from the mill on the marine environment.  He did this by approving nine of the remaining modules, which Gunns gushed as the green light to begin construction any time soon (but they have said this all before, again and again), but gave Gunns a two-year extension to complete hydro-dynamic modelling for the disposal of waste in Commonwealth waters in Bass Strait. 

Garrett’s decision was a surprise to the mainstream media (with the exception of The Australian’s Matthew Denholm), which led most commentary to construe it as a major setback for the company. 

To the contrary.  Garrett has provided Gunns with cover for over two more years for its continued posturing about seeking finance, which is very convenient for them.  They have, in effect, been given an extended timetable to tackle obstacles that still exist.  Apart from providing valuable extra time to pursue joint-venture partners if and when more favourable economic circumstances emerge, or to sell the whole project to foreign interests, they have been gifted an indefinite period to avoid adding the $100 million (their stated amount) already spent to their balance sheet.

The company also has more time to find a solution to the problems associated with building a pipeline from Trevallyn dam to the Bell Bay site, and to build arguments for extra tax-payer subsidies, both of which have already begun, as is clear from media reports in the last few days.

Another clear benefit of the extra time is to await extensions of MIS plantation schemes, in the process of being ramped up by the Rudd government, and to see where the Bartlett government’s dip into the federal infrastructure fund helps logging-transport arrangements to Bell Bay, and perhaps most significantly, the upgrading of the Bell Bay port itself.

Strange how all these synergies have come together at the beginning of 2009.  Wouldn’t you just love to be a fly on the wall while all the toing-and-froing between Gay’s office and Garrett’s office took place in all those weeks and months leading up to the orchestrated public pronouncements and media releases on January 5, 2009?  How intriguing it would have been to hear Gunns propose ways and means of avoiding having to shut the mill down if effluent discharges into Bass Strait exceeded the stipulated pollutant limits.  Peter Garrett applauded their initiative in such matters on ABC radio on January 6, 2009. 

But let’s face it folks.  Most of the social, environmental and any other impacts are not within Garrett’s scope of reference, as he has been at pains to make clear whenever he is interviewed.  But we know all that.  It’s all in the Tasmanian “fast-tracked” Pulp Mill Assessment Act – Pulp Mill Permit (PMAA- PMP).

What’s more, Garrett, Julia Gillard and Gunns’ are stating unequivocally that the mill can now be built at any time.  But hasn’t that been the case since Malcolm Turnbull approved the project in 2007?  Remember John Gay’s repeated mind-numbing assurances that construction was about to start at all sorts of times during 2008 – it’s all on the public record.  We were informed at one stage that the bulldozers were set to roar and rip before the end of January, 2008. 

But the “fast-tracking” only ever applied to the legislation. And weren’t the law-makers keen?  Keen to take it all on from the RPDC.  Keen to commit to Gunns’ timetable.  And to commit absolutely.  They told us all about it.  Recall the pleas for sympathy from overworked “representatives of the people” spending days on end without sleep to meet Gunns’ deadlines? 

Duty called in a way it had never done before, as far as I know. Gunns demanded nothing less than ensuring the Tasmanian Parliament understood the importance of its timelines.  That was paramount.  All other business was of no comparable significance.  That could all wait.  Gunns’ timelines merited emergency attention.  Is there any other occasion, even during wartime, when this kind of parliamentary action has been deemed necessary, since Federation in 1901?  If so, it would make an interesting comparison. 

Whichever way you look at it, this is Tasmanian democracy in action, at its best, at its purest – because we were provided with a clear view, stripped to the essentials, of how the current Tasmanian Parliament sees itself, its role, its institutional authority, and its responsibility to the people.  Collectively, and unambiguously they see themselves (with some admirable and courageous exceptions) as the representatives of corporate power, not of their constituents.   

The Tasmanian Parliament, in their manifest wisdom, needed to approve the PMAA “as fast-tracked as possible” (now there’s a great weasel phrase – aftap instead of asap!) in 2007 to avoid company expenses, running at one million dollars a day at the time.

When one MLC was asked whether she had sought independent legal advice about the meaning of section 11 of the PMAA, she said that she “didn’t have time”.  If any confirmation was needed that the whole Parliament (bar the reviled Greens, and the more reviled Terry Martin, and a few independent MLCs) gave no thought at all to the interests of people who could be adversely affected by the mill, then “didn’t have time” is a neat metaphor for that priority – or lack of it.

Then, like a magic potion, “fast-tracking” evaporated, never to be seen again.  Fast tracking of the pulp mill was fast tracked into oblivion.  The hare turned into a tortoise. 
   
So it really should be no surprise to the people of the Tamar Valley to have a further extension to their life of uncertainty until sometime into 2011.  But it would be unwise to place any bets on that as a final deadline.  Deadlines in relation to Gunns are like Premier Bartlett’s “line in the sand” and all his other statements about the pulp mill – empty, meaningless and false. 

However, there is one interesting issue that has been raised by Garrett’s decision, and that relates to the apparent contradictions in the conditions he has applied to impacts on the marine environment in Commonwealth waters and the conditions applied by the Tasmanian PMAA-PMP in relation to the adjacent marine environment in Tasmanian waters. 

In explaining his decision on January 5, 2009, Garrett implicitly (but presumably unintentionally?) rejected the whole basis of the Tasmanian approval process for the pulp mill.  He said he would not grant approval until detailed studies on the potential marine impacts had been completed. “That includes having a thorough understanding of the potential impacts of the mill’s effluent discharge on Commonwealth marine waters and absolute confidence in the proposed management and response strategies that are proposed to put in place to protect the environment.”

That is certainly a real contrast with what happened in Tasmania’s Parliament, is it not? All Tasmanian politicians who voted in support of the PMAA- PMP looked away from any consideration of “thorough understanding of the potential impacts of the mill’s effluent discharge on” Tasmanian waters, whether in the Tamar estuary or Bass Strait. 

They looked away completely.  They refused to consider any and all independent scientific advice about the potential dangers to the marine environment.  The most striking example of this was their deliberate refusal to consider the highly relevant advice of Chilean scientist Dr Eduardo Jaramillo, who had direct experience in complicated studies about the impacts of pulp mill effluent on marine environments in Chile.  He was ignored by Tasmanian Labor and Liberal politicians.

To make matters even worse, they gave approval to a much less stringent set of conditions included in the Tasmanian legislation than those required by Malcolm Turnbull under the federal EPBC Act, subsequently inherited by Peter Garrett.  The only difference between Tasmanian waters and Commonwealth waters in Bass Strait is an arbitrary distance from the coast.

The obvious question which arises from this is why did Tasmanian politicians accept less stringent conditions (including the need for detailed hydro-dynamic modeling) than those which were required to be met under national legislation in an area where State and national jurisdictions overlapped? 

The answer is that they were negligent.  Were they deliberately negligent?  They were not negligent by oversight, or through lack of access to information.  Their negligence is more serious.  Again, reference to Jaramillo is pertinent.  Jaramillo came to Tasmania; he gave public lectures; he made himself available to all Tasmanian politicians.  Furthermore, he is not the only scientific expert whose advice was ignored. 

Garrett’s decision, while it provides additional confirmation of the dereliction of Tasmanian politicians, does nothing to alter conditions solely within the jurisdiction of the Tasmanian parliament, enshrined in the PMAA-PMP.  A number of these conditions failed to meet standards set by the Tasmanian RPDC, and were regarded as “critically non-compliant” with those standards.  When the RPDC lost its determining authority in relation to the pulp mill conditions those standards lost their pertinence. 

But nevertheless, Garrett’s decision surely demonstrates that the Tasmanian legislation in relation to impacts of the mill’s effluent on the marine environment in Tasmanian waters is unacceptably deficient, and it is unacceptably deficient precisely because Tasmanian politicians decided to ignore independent scientific advice, to avert their eyes and their minds.

This is a matter of vital importance, and cannot be over-emphasized, because it was not only in relation to the marine environment that Tasmanian politicians “looked away” and deliberately ignored independent expertise, but in every other area of possible adverse impact of the pulp mill. 

The evidential base for all the legislative framework about the pulp mill, whatever the issue, (from air pollution to water supply, from odour control to impacts on Tamar Valley businesses and properties, from transport to wood supply, and so on) did not include a “thorough understanding of the potential impacts”.  As in the case of the potential impacts on the marine environment, all independent expert advice was given no consideration.  It was all comprehensively ignored.  “Didn’t have time” is a caveat for irresponsibility, incompetence and a dereliction of duty.

There has always been a compelling case that the PMAA-PMP were direct assaults on the fundamental rights of Tasmanians, especially in the Tamar Valley, because no provisions were ever made for any assessment of the social, economic and environmental impacts of the pulp mill, including on people’s health and well-being, local industry and business and possible pollution of the atmosphere, and because no baseline studies have been done in any of these matters. 

In the light of Garrett’s decision that compelling case is now more compelling.  So it was fascinating to see that in the immediate aftermath of Garrett’s announcement, Tasmania’s Minister for Economic Development, Michael Aird, issued a press release about section 11 of the PMAA, in which he said this:

“Section 11 does not restrict the rights of individuals and organizations to take legal action if they consider they have incurred some sort of loss through the actions or operations of the pulp mill.  The effect of Section 11 of the PMAA 2007 is merely to limit the right to appeal any actions, decisions, processes or other matters arising from the assessment process…  But this does not prevent civil action for damage to property that might occur during construction or operation if a party believes they have suffered a loss”.

Apart from the political cynicism in the timing of this press release, the Minister’s statement needs to be exposed for its blatant and deliberate disingenuousness.  Aird well knows that Section 11 was inserted in the PMAA precisely because the legislation gave no consideration to any assessment of the social, economic and environmental impacts that the mill may have.  These were carefully and deliberately excluded. 

In this way Section 11 is a clear abrogation of the rights of people to have access to the common law to ensure that possible social, economic and environmental impacts of the mill are not excluded from consideration under statute law.

This is exactly what Section 11 seeks to achieve, an absolute certainty within the legislation that assessment of possible impacts on people already deliberately excluded cannot be included at a later date via appeal through the common law.

But Aird’s (and the Tasmanian government’s) disingenuousness extends further than that.  His statement needs to be read within the context of a current legal challenge to Section 11 by a small group of Tamar Valley residents and niche agri-businesses, which has been launched in an attempt to obtain reasons for the exclusions.  It speaks volumes that the Tasmanian government is fighting the challenge. 

Just consider these further egregious absurdities about Aird’s statement.  Tasmanian constitutional lawyer Michael Stokes has written, “a lack of base line readings will make any (legal) challenge (during construction and operation of the mill) difficult except in extreme cases because of the lack of evidence”. 

Further, Aird fails to make clear that Section 11 also applies to the PMP and prevents appeals to all future “permits, licences or other approvals as may be necessary for the project”, that are not currently in the PMAA.

Michael Stokes has this to say about the PMP:
“Conditions 8 and 9 of the PMP attempt to remove the duty of the agency responsible for enforcing each condition to the extent of its powers (specified in Section 8 of the PMAA) by effectively stating that a breach of the condition only occurs if the enforcement agency is of the opinion that it has occurred and notifies Gunns to that effect.  Although that opinion must be reasonable, it gives a discretion to enforcement agencies which the PMAA did not give.

“Equally importantly, it undermines the right of members of the public to seek civil enforcement remedies under the Land Use Planning and Approvals Act (LUPAA section 64) and the Environmental Management and Pollution Act (EMPCA section 48). These remedies are much cheaper and quicker than Supreme Court action.  Conditions 8 and 9 of the PMP mean that the public can only exercise these rights after the relevant agency has formed the opinion that there has been a breach and served notice to that effect on Gunns.  Therefore the public’s rights under section 48 of EMPCA and section 64 of LUPAA are made to depend upon the agency’s having issued a notice”.

In other words, instead of protecting people, property and business in the Tamar Valley from the possibility of damage to the health and livelihood of communities there, for example by specifying in the PMAA-PMP that baseline studies be carried out for those purposes, and by ensuring that people had proper avenues for redress, the Tasmanian Parliament has done the opposite. 

Far from people being able to seek legal redress during construction or operation of the mill, as Aird claims, the Tasmanian Parliament has gone out of its way to prevent that, deliberately ensuring the virtual impossibility of civil enforcement actions for conditions in the PMP.

All Aird has done with his latest press release is continue the well-worn strategy – Look away! Look away!  Look away!

Dixie was the perfect tune for the Confederate armies.  A perfectly tragic metaphor of denial, obliterating the humane, denying the fundamental elements of social justice, and transforming indefensible motives for war into a defense of something else, of a particular type of political “freedom”, of political “sovereignty”, a “way of life” and a “law of the land”. 

As I said at the outset, “look away” embodies degrees of seriousness.  But in a so-called democratic political system it cannot be justified or tolerated, because it denies the precautionary requirements essential to good governance.  The Tasmanian PMAA-PMP does not meet those standards, and was never intended to.

It is an unjust law in all its fundamental premises and must be repealed.

  1  Michael Stokes’ detailed treatment of this can be found in “Analysis of regulatory and enforcement powers available under the PMAA 2007”, Tas Times, 11/9/07: ( Here )

 

 

Peter Henning
The point is that when a political system “looks away”, when that becomes the shared preference, the shared group agreement, the rationalized majority opinion and the articulated propaganda for action, injustice has become institutionalized.  That is what has happened in the Tasmanian polity, throughout the parliamentary Labor and Liberal parties and among like-minded independent politicians.