Tasmanian Political Rot: The PMAA Revisited

Reproduced from www.tasmaniantimes.com

PETER HENNING

The recent “highly publicized” activities of Gunns at Longreach and the Trevallyn Reserve have revived and broadened public interest and public scrutiny of the now infamous PMAA and its associated permits. No need any more to spell out the name of the legislation. It’s now a well-known acronym, and continually growing in stature, but has long since left behind its aura of a model of controversially undemocratic Tasmanian legislation. It has acquired a more singular authority, as a thorough exemplar of political rot, the template for the failure of Tasmanian political processes at their worst.

The carefully orchestrated publicity between Gunns and its unfailingly fawning propaganda arm, the Launceston Examiner, has rebounded in quite spectacular fashion on both parties. The Chinese Government couldn’t have done it better. The Examiner has become more of a laughing stock than ever, and Gunns has provoked a barrage of new questions about the permit arrangements, its public credibility (yes I know that’s not new) and its motives.

We should thank both Gunns and the Examiner for sharpening our focus a bit more, and inviting us to have another look at the contents of the PMAA and the permit conditions.

The Trevallyn Reserve is a good place to start, now that the Examiner has provided us all with a lovely glossary of photos at Gunns’ request (see www.tasmaniantimes.com ). Very kind, clever and connected.

This is what Michael Stokes (Tasmanian constitutional law expert, UTAS) has just written on the matter: “If the Trevallyn Reserve is crown or council-owned land, it is clear that the PMAA permit did not give Gunns any property rights over the land of others, including government agencies – the Solicitor-General agreed on that. Therefore, before it can do anything on such land, Gunns needs the permission of the owners. There are often statutory formalities attached to the sale or disposal of government land which would prevent Gunns’ carrying out the work with a bare permission from the government agency which controls the land. To know what those formalities are, I would need to know the status of the reserve, the legislation under which it is created and the agency which is responsible for its management.”

Taking this in conjunction with the information provided to John Day by the Environmental Protection Authority, Gunns’ activity on the Trevallyn site provokes the obvious question – why the heavy publicity and why now? There are other questions Michael Stokes raises, but it is Gunns’ motives which are front and centre here.

“Gunns may be doing some work because of doubts about whether their PMAA permits survive the end of the month. Those permits take effect as if issued under LUPAA and LUPAA permits expire after two years unless substantially commenced, so these permits may expire then. Substantial commencement requires a real commitment of resources to work referable to the particular development. Substantial progress or completion is not required. To count for the test, the work done must be referable to the permit granted. Land clearing is ambiguous because it is a part of any development, not just the approved development. However, if a permit is needed for land clearing and the only permit is one for the development, then land clearing may count towards substantial commencement.” (11/8/09)

It is rather pointless asking Gunns about any of this, but it is abundantly clear that the Tasmanian Government has a responsibility to the public to clarify the situation in relation to the expiry date of Gunns’ permits. The public should be informed about the truth of this matter. The question David Bartlett should be answering is whether in fact the “work” Gunns is spruiking as “start of construction” of the pipeline at the Trevallyn dam and the mill at Longreach is to ensure an extension of the permits beyond their current expiry date.

If Bartlett fails to answer this question and the permits are then extended beyond their current expiry date, the issue of the Labor Government’s honesty in relation to this matter, given the way the matter has been publicly reported, will be examined in detail. That is a given.

There are other matters that have been raised about the absurdities of this current situation which, individually and in their entirety, tell an abysmal story of the continuity of Labor and Liberal corporate cronyism and chronic bad faith with the Tasmanian people since the change of the guard from Lennon to Bartlett.

All the issues relating to abject dereliction in governance which Bartlett inherited remain unresolved, in limbo or brushed under the carpet, with the Liberal opposition quiescent, fearful of their own undoubted complicity being released like some Pandora’s box of closeted skeletons.

One of those issues, that of mandamus, has now been thrown into the mix of questions about what is happening with Gunns’ recent activities, and that is an interesting matter, because it opens another window into the minds of those who wrote and voted in support of the PMAA, and what they think about the people they are elected to represent.

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 the context of this discussion it is interesting to note what Chief Justice Michael Black of the Federal Court of Australia has said about section 75 (v): “I quote Chief Justice Gleeson who observed that ‘section 75(v) of the Constitution … secures a basic element of the rule of law. The jurisdiction of the Court to require officers of the Commonwealth to act within the law cannot be taken away by Parliament’. In a case decided only last year the High Court affirmed the importance of section 75(v) and referred to its ‘special significance’ and it cited Sir Owen Dixon’s view that the purpose of the provision was ‘to make it constitutionally certain that there would be a jurisdiction capable of restraining officers of the Commonwealth from exceeding Federal power’. Because the High Court and its powers are grounded in the Constitution, Chapter III assumes a fundamental importance in our constitutional jurisprudence and indeed in our democratic system. Professor Robin Creyke has said that section 75(v), a ‘guarantee of fair process at the highest judicial level’, is matched by only one other common law jurisdiction, namely South Africa.” (4/12/08)

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”.

Imagine the plethora of opportunities for aggrieved persons against the PMAA if Section 11 in its thoroughness had not been part of the pulp mill legislation. 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”.

There is one other issue about Gunns’ current activities, the related silence of the Tasmanian Labor-Liberal accord, the PMAA and permits, which is worth returning to at this time.

The issue relates to the interface in jurisdiction between Tasmanian law and Commonwealth law as it applies to the pulp mill, and it is an issue which highlights even further the dereliction of responsibility which the Tasmanian Parliament has shown towards the people by supporting the PMAA and the permit system.

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, but under the PMAA they are not required to meet anywhere near the same standards for effluent disposal in Tasmanian waters, irrespective of the fact that Tasmanian waters encompass valuable fishing grounds, the entire northern coastal area of the State, the Tamar Estuary and the tidal flow along the Tamar as far as Launceston.

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.

The point is that if the Commonwealth had jurisdiction over the social-environmental-economic matters deliberately excluded from the Tasmanian pulp mill assessment process, involving a real cost-benefit analysis, the conditions which apply under the PMAA would have been totally unacceptable. Moreover, each and every one would not have been exempted from the test of mandamus as it applies under Section 75 of the Australian Constitution.

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 conga-line of corporate lackies that comprise the Tasmanian Labor-Liberal accord would scoff that such questions will ever be raised by Tasmanian people.

It is not just that Tasmanians have been betrayed by their elected “representatives” in both houses of the Tasmanian Parliament through stupidity, incompetence or contempt for the legitimacy of all expert independent advice outside the corporate-bureaucratic world, but that they have been deliberately betrayed, with very acute care and attention to detail. The statute bar on the Judicial Review Act 2000 in Section 11 of the PMAA shows the intent, the care and the diligence of this betrayal.

Peter Henning