Tasmanian neo-liberalism – A new vision for terra nullius

....“If the law is unjust, then access to the law is not access to justice.”  (Julian Burnside 2006)

The Pulp Mill Assessment Act 2007 is an unjust law. It is a law which promotes dispossession.  It is a law which fosters a new form of political terra nullius in Tasmania. Section 11 of the Act is abhorrent in its meaning and intent.  Those who voted for it do not deserve to be, and cannot claim to be, representatives of the people.

The Pulp Mill Assessment Act 2007 should be repealed

By Peter Henning

In the days leading up to the first anniversary of Gunns withdrawing from the legislatively defined planning processes in Tasmania for the approval of Australia’s biggest pulp mill, amid new revelations that millions of dollars of extra public money may be funnelled into essential infrastructure for the mill, one public pronouncement has gone largely unnoticed.

In the first week of March, 2008, a senior Tasmanian official of the CMFEU, speaking on behalf of his union on national television, described opponents of the pulp mill as “terrorists”, who should be subject to the full force of the law, by which he clearly meant the Howard anti-terrorist legislation. 

Until now, opposing or questioning voices have been dismissed in other ways. Many, especially critics with specialist expertise, and across the whole gamut of issues relating to the pulp mill, from wood supply and forestry practices to air and marine pollution, from health and social impacts to fishing and agribusiness costs, and from infrastructure subsidies to water supply and the use of pesticides in catchment areas, have simply been ignored if they contradicted Gunns’ IIS.  Others, such as Richard Flanagan, had already been told they were not welcome in the “New Tasmania”, and Richard Cousins and Rebecca Gibney were given the same message.  Yet others, such as former Resource Planning and Development Commission (RPDC) members and dissident MPs, were pressured and bullied, and some, like Warwick Raverty, have been personally and professionally vilified.    

But during 2007 the standard term used by Lennon for opponents of the mill, whoever they were, became simply “extremists”.  The position now taken by the leadership of the CMFEU is a step made possible by this groundwork. 

It is a groundwork of division that has been carefully nurtured by the Lennon government, by the derelictions of due process, of proper political representation and of ethical standards of governance. It is a step made possible by the complicit compliance of a weak Liberal opposition, and the failure of “independent politicians” in Tasmania’s upper house, essentially because all these politicians are ideologically identical, all committed to a neo-liberal agenda, and all at one in the methods and language of silencing dissent.

All these politicians have acquiesced in the gradual escalation of disparagement of dissent, of disagreement, even of discussion.  They have fallen into line behind the government’s use of language to marginalize and demonise.  They share the same stage, they walk together, and they say the same words, as they did in their politically orchestrated, paid-to-march pro-mill demonstration in Launceston last year.

Just as during the bitter divisiveness of the Howard decade, when language was carefully and deliberately crafted to create fear and prejudice about difference for crass political gain, for example by transforming political refugees from “asylum seekers” to “queue jumpers”, to “illegals”, the better to incarcerate them for years in concentration camps, or “detention centres”, the language used in Tasmania against critics of the pulp mill has gradually proceeded in the same direction. 

It is a process, as Australia’s preeminent human rights lawyer, Julian Burnside, has said, which enables language “to smuggle uncomfortable ideas into comfortable minds”.  The notion of citizens who oppose Gunns’ pulp mill as “terrorists” is but a small step from Lennon’s term “extemists”, just as “queue jumpers” soon became “illegals”. 

The Premier of Tasmania, if nothing else, is a keen apprentice of John Howard, especially in the politics of division as a means to implement a neo-liberal agenda in the interests of corporate power.  How better to do that than by putting all dissent into the “extremist” tray, courting the “battlers” in true Howard fashion, and leaving the Liberals me-tooing about the main game of all-and-everything for the big end of town – or in this case the biggest end of town – Gunns.

The result has been predictable enough.   In relation to the pulp mill there is a political-corporate-union-business alliance, involving both main parties, Gunns, employer groups and the CMFEU.  Lennon Labor, Hodgman Liberal, the CMFEU, the Tasmanian Chamber of Commerce and Gunns are cosily all arm-in-arm.  It is in the context of this odd and unhealthy political alliance that a judgment can be made about the statement of mill opponents as “terrorists”, and perhaps equally significantly, of the silence that has greeted this pronouncement in the main corridors of power.

Just as in Howard’s Australia, now in Lennon’s Tasmania, stereotypical labeling of groups of people on the basis of difference permits the implementation of a new kind of political invisibility for those people, where their views, their voices and then their rights can be systematically ignored, condemned and legislated away.  This is easy to do when the political opposition is weak or non-existent, and the press is weak or compliant.  The first condition is unequivocal, and the second is particularly strong in Tasmania’s northern print media.

Just over one year ago, soon after Tasmania’s independent planning authority, the RPDC, informed the Premier’s Department that Gunns’ plans for the pulp mill in the Tamar Valley were still critically deficient in some key environmental areas, Gunns withdrew from the legislatively defined planning-assessment process and Lennon quickly established a special fast-track process, designed specifically for Gunns.

The areas identified by the RPDC as requiring additional information from the proponent were not now pursued.  Lennon then turned the Tasmanian parliament into a “planning” authority to replace the RPDC as both the recommending authority and the decision-making body, and all politicians of both main parties, and a majority of “independent” upper house members, agreed to pass legislation, already perused by Gunns, in a very tight time-framework mandated to suit Gunns’ stated timetable.

In this way Pulp Mill Assessment Act 2007 became law in Tasmania in July 2007, as did Section 11 of the Act, headed “Limitation of rights of appeal”, which reads as follows:

(1) Subject to subsection (3) and notwithstanding the provisions of any other Act –
(a) a person is not entitled to appeal to a body or other person, court or tribunal; or
(b) no order or review may be made under the Judicial Review Act 2000; or
(c) no declatory judgment may be given; or
(d) 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 project under this Act.

(2) For the purposes of subsection (1), “any action, decision, process, matter or thing arising out of or relating to any assessment or approval of the project under this Act” includes any action, decision, process, matter or thing arising out of or relating to a condition of the Pulp Mill Permit requiring that the person proposing the project apply for such other permits, licenses or other approvals as may be necessary for the project.
(3) Subsection (1) does not apply to any action, decision, process, matter or thing which has involved or has been affected by criminal conduct.
(4) No review under subsection (3) operates to delay the issue of the Pulp Mill Permit or any action authorised by that permit.

And so it has been in the polity of Tasmania that a majority of politicians have made plain to us all how best we should interpret their thoughts.

The statute bar put on this legislation is quoted in full to show clearly how the majority of Tasmanian politicians perceive their roles as “representatives” of their constituents.  Their collective attitude was further articulated through the voice of the Deputy Premier, just before the legislation was passed by the upper house.  He suggested that businesses affected adversely by pulp mill pollution had the avenue of pursuing civil action. 

Clearly, it is not as if there was a lack of awareness that the legislation contained no provisions for any baseline studies on possible adverse impacts, or that it totally excluded any consideration of social, economic and environmental costs.  As the statute bar makes clear, most politicians were concerned to ensure that there were legal barriers to prevent consideration of any such risk assessments.

This was the mark of the New Tasmania, where as Paul Lennon indicated on March 14th 2008, the anniversary of Gunns leaving the RPDC assessment process, “the Tamar Valley became a site where the numbers stacked up the best”, and those opposed to the market fundamentalism of this economic logic on any other grounds at all, “most people in Launceston”, according to Lennon, could safely be described as a NIMBY lot – a “not in my back yard” lot.

Lennon, in his complete disregard of any information except the purely economic - and that based exclusively on the proponent’s views – stands in contradiction to any strand within the western intellectual tradition espousing democratic values and practice.  Contrast his stated position with that expressed by the great Greek historian, Thucydides, writing 2,500 years ago in relation to Athenian democracy, the ancient model and inspiration for all future democratic experiments, who said, putting words into the mouth of the Athenian politician, Pericles –– “Instead of looking on discussion as a stumbling-block in the way of action, we think it an indispensable preliminary to any wise action at all”.

Lennon’s choice of ideological inheritance from within the western intellectual tradition, like John Howard’s, is closer to the authoritarianism of Hobbes and Machiavelli than to the liberal intellectual current from Locke that fed into the development of the American Bill of Rights, and other liberal democratic ideas.  

He is not alone in this conviction in the Tasmanian Parliament, so that those with alternative views (and with no vested interests) and those who might be adversely affected by the mill, have all, in their diversity, been cast adrift en bloc, as political outsiders.  In the New Tasmania the new politically invisible inhabit a new kind of terra nullius, their voices not only unheard but unwanted, their rights to fair and equal representation seen as unwarranted and barred by legislation. 

Terra nullius?  The notion of terra nullius or “land without owners”, was, is and always will be, a neo-liberal’s dream come true. It is a pure alliance between political power and the interests of capital. An alliance between government and defined sectional interests.
In European colonial history it provided the “legal” justification for dispossession of people from their land. The political and economic logic was that exclusive land title and property rights were available without cost to the new owners. 

This form of alliance reached its apogee in Van Diemen’s Land during the 1820s and 1830s, resulting in the complete dispossession of the Aborigines in favour of a small elite of wealthy sheep farmers. Ironically, as James Boyce has demonstrated in his brilliant new history of Van Diemen’s Land (and to paraphrase him), the success of the elite’s labour force, convict hunters and shepherds, in driving the Aborigines from their traditional hunting grounds, strengthened the social and economic power of the elite but weakened their own, creating the circumstances of their own eviction from the better land and the curtailment of their autonomy and independence.

In the words of Henry Reynolds, “the theory of an uninhabited continent was just too convenient to surrender lightly”.  For a small British elite in Van Diemen’s Land-Tasmania during the nineteenth century, the consequences of the implementation of the notion of terra nullius were the foundations of economic wealth beyond their dreams, control of the pastoral economy for generations and political and social power.

The past may be another country, but the notion of terra nullius, used as a means to exclude, speaks across time, not in the way that George Santayana meant when he wrote in 1905 that “those who cannot remember the past are condemned to repeat it”, but rather in the sense that “history is the weapon with which we defend the future against the past” (Lewis Lapham, 2008), in the challenge to those who would seek to ignore the needs of others and dismiss their claims to equal value.

But in Lennon’s Tasmania, the attempt to exclude, by language and law, as already described, is but a narrow definition of the new form of political terra nullius being implemented. 

The broader human contexts are exemplified by a decision, serendipitously only made public due to astute journalism in early March this year, that Tasmanian taxpayers could pay for Gunns’ pulp mill pipelines, to supply annually between 26,000 to 40,000 megalitres of fresh water from Launceston’s main source of supply, the Trevallyn Dam, and to carry mill effluent into Bass Strait.  One cause for concern is that it is not known whether this was already being considered prior to the passage of the Pulp Mill Assessment Act 2007, or later, nor whether the matter was discussed with Gunns, because it was not raised as an issue at the time of the fast-track legislation. 

The broader human contexts are twofold.  In the first place, it is also public knowledge that Gunns’ water requirements represent, in current climatic conditions, 45% of available flows into storage.  All other annual domestic and industrial usage of water in the greater northern area, including all Launceston and some areas beyond it, is about 29,000 megalitres.  Obviously, the water volume Gunns needs for the mill will require curtailing the needs of all others, domestic, agricultural and industrial.

Secondly, the financial cost of the pipeline infrastructure for the mill, probably in excess of $100 million, comes at a time when the Lennon Government “cannot” find adequate funds for its public responsibilities under the Australian federal system, in health, education, housing and every other state-defined area of responsibility, except forestry.

In mid-March the government was discussing how best to impose an additional tax on Tasmanians to pay for ambulance services, having reluctantly retreated from their natural inclination towards the neo-liberal notion that the “service” should be provided on the same basis as taxis, user pays, and pay at the time.

Finally, let us revisit briefly the “hunters and shepherds” of colonial Tasmania, often exploited and then discarded by the nineteenth century pastoral elite, bearing in mind that “what is commonly assumed to be past history speaks even when no one wills to listen”. (Ralph Ellison, Invisible Man, 1947).

 The hunters and shepherds have their modern equivalents.  They are now spread more widely in the socio-economic spectrum.  There are those, like MIS investors, whose risk capital and tax free-incentives assists corporate acquisition of land, in much the same way as the old land grant scheme worked, and with much the same result, concentrating land ownership in a few hands without much cost to the owners  And then there is the labour force, such as those who have been encouraged to invest heavily in machinery and vehicles, or in narrowly-based skills, and have tied themselves to a “contract” relationship which relies almost exclusively on external factors to serve their long-term interests.

There are many other examples which could be detailed to demonstrate how Cicero’s dictum from the last days of the Roman Republic, in the first century BCE, “the welfare of the people is the ultimate law”, is being breached by those holding power and influence in Tasmania.

Less than a century after Cicero was forced to commit suicide by Mark Antony, as military dictatorship ushered in the death blow to any hope for a revival of democracy in the ancient western world, a more cynical and pessimistic Roman voice, of disputed origin, said “what power has law where only money rules”.

If viewed as a statement, this kind of power is authoritarian power, where property or people who are in the way can be treated as various types of terra nullius, or simply exploited for purely personal and/or corporate material gain, using state levers for the purpose, including the law, public and private capital, coercive military or police power, propaganda, labour and interlocking government policies.

If viewed as a question – “what power has law where only money rules?” -  let the answer lie with some wisdom from Julian Burnside, of our time, dealing within an Australian context, writing in 2006:  “If the law is unjust, then access to the law is not access to justice”.

The Pulp Mill Assessment Act 2007 is an unjust law. It is a law which promotes dispossession.  It is a law which fosters a new form of political terra nullius in Tasmania. Section 11 of the Act is abhorrent in its meaning and intent.  Those who voted for it do not deserve to be, and cannot claim to be, representatives of the people.

The Pulp Mill Assessment Act 2007 should be repealed.

Peter Henning