Law and Justice Part Company – Tasmanian Pulp Mill Assessment Act 2007

Our state politicians have passed an anti-democratic law (Section 11, Pulp Mill Assessment Act) which says you are not entitled to appeal for compensation for damages caused by Gunns pulp mill to your business, property values or health.

Peter Henning writes about the “Limitation to rights of appeal” (Section 11) and how people are excluded from access to the court.
 

In the ninth Manning Clark lecture, delivered by prominent lawyer Julian Burnside in Canberra in March this year, he said this:

“When Law and Justice part company, we are betrayed; when Parliament makes unjust laws, we are betrayed; when Justice is promised but is placed beyond reach, democracy fails.”

This statement is applicable to the current state of affairs in Tasmania, and has particular relevance to the Pulp Mill Assessment Act of 2007 (PMAA).  There has been much public concern about how this legislation was prepared and passed, both within Tasmania and across Australia, some foci of those concerns being the abandonment of due process, the scrapping of defined planning processes, the deliberately truncated parliamentary deliberations and scrutiny, the sidelining of public submissions and the marginalization of independent expert advice.

With the focus squarely centred on the willingness of a majority of Tasmanian politicians in both Houses of Parliament to abrogate due process to meet the demands of a private corporation, aspects of the legislation itself, which deserve broader public exposure and public awareness, have received little attention, especially Section 11 of the Act, headed “Limitation to rights of appeal”.

Section 11 of the PMAA is a graphic demonstration of the truth of Burnside’s comment that “the time has passed when we could safely assume that parliament would never pass laws which offend decent values”.

The relevant parts of Section 11 stipulate that “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 declatory judgment may be given; 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 project under this Act.”

Why did the government include such an anti-democratic section in the PMAA, and do it without at the same time writing into the legislation compensation guarantees to protect people and communities, and why did the ALP, the Liberal Party and a majority of pseudo-independent MLCs support it on those terms?

The answer to that question would appear to lie in the fact that the PMAA would prevent any person seeking any form of legal redress if their health, or the health of their children, is affected by emissions that can be traced back to the mill.

It would appear to lie in the fact that it would prevent any business enterprise, whether in farming, fishing, tourism, service industries or something else, seeking legal redress if that business was jeopardized, undermined or destroyed due to adverse impacts from the pulp mill.

And it would appear to lie in the fact that it would prevent any resident or land owner from seeking redress for loss of value or damage of property, if land and property in the vicinity of the pulp mill, or perceived to be in the vicinity, lost value due to that proximity.

To expand on this a little further, the potential human consequences of this legislation are severe, for it provides no protection for people, their health, their property, their employment and business security, or anything else, if the pulp mill ultimately has deleterious impacts. Instead, the legislation deliberately and thoroughly attempts to remove any opportunity for people to seek redress if they are adversely affected in any way.

Common law is no safeguard for anyone caught in this predicament either, because common law is based on court decisions built on precedent, and Section 11 specifically prevents appeal to any court or tribunal.  Statute law overrides common law.  The statute bar of Section 11 is deliberately designed to prevent access to the court system by the people.

There is another dimension of the PMAA which would ensure great difficulty for any person, or group of people, or a community, to pursue civil action against loss.  There is no provision within the legislation for any base-line studies to be undertaken in areas of possible contamination from pulp mill emissions.  This is not an oversight, but a deliberate omission, for there were many public pleas for this provision, which were all ignored. 

This was acknowledged by the then Deputy Premier Steve Kons, who cynically said that civil action was an avenue for redress against pulp mill pollution.  Kons knew that base-line studies had been left to individuals and businesses who/which had been given no information about the chemical composition of contaminants that they should test for.  He also knew, or should have known – along with all politicians who voted for the PMAA – that base-line studies for dioxins, for example, are extremely expensive, and likely to be prohibitive for most, if not all businesses in the Tamar valley.

As Burnside has clearly demonstrated in his discussion about the Howard government’s  immigration laws, the power of the judiciary in all Australian jurisdictions to check parliaments from enacting unjust laws is very limited.  The High Court’s determination that legislation permitting “an innocent person to be held in detention for life” is within the scope of the parliament’s powers in relation to immigration, and is therefore valid, shows just how weak and flimsy Australian democratic freedoms are.

But in the Tasmanian political system the power of the judiciary is weaker than in the federal sphere. In Tasmania, unlike all other states and the federal parliamentary system, the executive and the legislative arms of government are virtually indistinguishable, and as has been seen, the judicial arm can be effectively excluded from a role in the democratic process by statutary law.

One of Australia’s preeminent constitutional lawyers, George Williams (Anthony Mason Professor of Law at the University of NSW) wrote in April this year that “where Tasmania lags behind other States and other nations is the failure to include proper checks and balances… One of the most important ways that modern systems keep government within proper bounds is by ensuring that they respect community rights”. 

So how does Section 11 of the PMAA stack up against the legacy of our inherited assumptions of  norms and values about freedoms, which include such things as equality under the law and freedoms applied equally to all?  Chapter 40 of the original version of Magna Carta, the 1215 version, says “To no one will we sell, to no one deny or delay right or justice”.  It is difficult to see how Section 11 of the PMAA can in any way be reconciled with this.

Why raise the connection with Magna Carta?  The reason is that for 800 years it has been the bedrock reference in struggles for democratic freedoms, first in the English political system, but then further and further afield, around the world.  Habeas corpus, trial by jury, prohibition of torture and due process of law, all have their origins there.  The US Declaration of Independence in the 18th century came from Tom Paine’s idea for an American magna carta.

Through English history Magna Carta has been used again and again as a defence and a weapon against tyranny.  Edward Coke, in his attack on the claim by James I to be above the law, said “Magna Carta is such a fellow that he will have no sovereign”.  In 1628 Coke drafted the Petition of Right, a very important foundation stone in the long battle to establish the principle of the rule of law applying to all within a parliamentary democracy.  One of the complaints Coke made in the petition was that the king “had been exempting some from the operation of the common law”.

Section 11 of the PMAA does exactly this.  It prohibits access of people to the courts, excluding them “from the operation of the common law”.

American historian Peter Linebaugh has argued at length that while some aspects of Magna Carta have grown to embody some fundamental principles (such as those mentioned above), its work is far from done. It is significant that among five other principles he identifies in the age-old charter, three of them are the principle of neighbourhood, the principle of anti-enclosure and the principle of reparations, all of which are directly under threat from Tasmania’s PMAA.

There is no doubt that local communities across Tasmania, from Upper Blessington to Preolenna, and from Pyengana to Bruny Island, are being denied “right or justice” by interlocking government policies, without any hope of compensation for loss, while the largest process of land enclosure in Tasmania’s history proceeds unabated, under the auspices of enabling legislation, such the PAL policy, and MIS schemes.

It is also relevant to consider how limitations of rights of appeal in the PMAA compare with definitions in international conventions, such as the 1948 Universal Declaration of Human Rights:

“In the exercise of his rights and freedoms, everyone shall be subject to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”.

More recently, and closer to home, the ACT “Human Rights Act 2004”, has a general limiting clause which states:

“Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.”

In 2006 the Tasmanian Government asked the Tasmanian Law Reform Institute to investigate whether human rights could be better protected and enhanced in Tasmania, no doubt influenced by the direction taken by the ACT in 2004, and also Victoria in 2006, but due mainly to the interest and commitment of then Attorney-General Judy Jackson, who pushed hard for this initiative, against cabinet opposition.

In October 2007 the Institute finalized its report and recommendations. Among specific rights recommended for inclusion in “A Charter of Rights for Tasmania”, the following appear to be in conflict with Section 11 of the PMAA:

• “The right to recognition as a person before the law;
• The right to equality before the law and to equal protection of the law;
• Freedom from discrimination;
• The right to the highest attainable standard of physical and mental health;
• The right not to be deprived of property except on just terms;
• The right to a safe environment and the protection of the environment from pollution and ecological degradation.”

Most Tasmanian politicians may be historically ignorant, and ignorant of human rights issues and legislation and international conventions, and oblivious to the damage they are doing to the democratic fabric, fragile as it is, and they can forward no excuse for that.  But as Warwick Raverty has reminded us, the situation is worse than that.  When elected, these “representatives of the people” made a formal commitment before the Governor: “To the people of this State, we owe the responsible execution of our official duties, in order to promote human and environmental welfare.”

This is not just a casual commitment to be ignored at whim or convenience or on the basis of caucus solidarity.  Nor is it a commitment to just some people in the State at the exclusion of others, as many of them would like to argue.  All those who have voted for the PMAA in the Tasmanian Parliament have abrogated this commitment.

In a political system which provides for pre-enactment scrutiny of legislation to ensure compatibility with human rights applicable to all people in Tasmania (and expressly excludes corporations from the definition of “people”, as the Tasmanian Law Reform Institute suggests), would Section 11 of the PMAA ever have seen the light of day?

Any cursory examination of human rights charters, from the time of Magna Carta until now, reveal that the kind of limitation of rights written into Tasmania’s PMAA in 2007 are in opposition to the spirit and intention of those charters, and are not compatible with reasonable restrictions on human rights as defined in those documents, whether they be international conventions, or the charters in operation in some other places in Australia.

Here and now, in Tasmania, parliament has unfettered power “within the scope of its legislative competence”, and is using that power to weaken the democratic rights of Tasmanians. 

Just as 300 years ago in Britain people were attempting to prevent their rights being subverted by the Stuart kings, who believed “divine right” gave them unlimited legislative power, so too now in Tasmania, people are fighting at local level, in the Tamar valley and elsewhere, to prevent their democratic rights being taken away.

One of the speakers debating Coke’s Petition of Right in 1628, stated, “I shall be very glad to see that good old decrepit law of Magna Carta… I shall be glad to see it walk again, with new vigour and luster.”  It took civil war and years of social and political dislocation for that to occur.

In Tasmania, by any standards of decency and basic democratic values, Section 11 of the PMAA is unjust.  In this case, as Julian Burnside has said of unjust laws in general, “we are betrayed” by our representatives, and “democracy fails”.

This needs to be remedied.  It is important that Section 11 of the PMAA be repealed, and that similar statute bars that interfere with basic human rights, where they appear in other pieces of legislation, also be removed.

It has been suggested that one way to achieve these ends and to prevent the further deterioration of democracy in Tasmania is to petition the Governor of the State to use his reserve powers. 

Another way is to exert pressure on the Tasmanian Parliament, especially through the small number of current parliamentarians (that is, those not committed to preserving their personal careerist ambitions within a party caucus, which they see as more important than  their representational responsibilities), such as those who opposed the PMAA, to fight for the repeal of the Act, and to fight for the implementation of “A Charter of Rights for Tasmania”, which already exists.

In this context, it needs to be remembered that Judy Jackson had left Parliament by the time the Lennon government received the Tasmanian Law Reform Institute’s report. Her successors as Attorneys-General, Steve Kons and David Llewellyn, have shown no interest in the recommendations of the Tasmanian Law Reform Institute.

This has prompted George Williams to say that Tasmania “has produced one of the best reports ever written on the topic anywhere in Australia”, but “the government has failed to act.  It has not disagreed with the report, but has let the process stall”. 

Williams concluded by warning that “further failures to move on a Tasmanian charter will mean that Tasmania loses out on a key part of having a better system of government”.  This identifies the nub of the issue.  There is much community skepticism that the Lennon government and the Liberal alternative seek anything better, because that could undermine their personal and partisan political ambitions.
   
If, as Edward Coke put it, we are to restore “the subject to his former right”, we need a Tasmanian magna carta, but the Tasmanian “Tom Paines” required to achieve it are unlikely to come from inside the self-seeking party machinery that controls the immediate future of Tasmania’s fragile and weakened democracy. 

Peter Henning

References:
Julian Burnside, “Ninth Manning Clark Lecture”, 2008
Julian Burnside, Watching Brief, Victoria, 2007
Peter Linebaugh, The Magna Carta Manifesto, California, 2008
Tasmania Law Reform Institute, A Charter of Rights for Tasmania, Final Report 10, 2007
George Williams, Tasmanian Charters letter, April 2008