Law and justice part company - Tasmanian Pulp Mill

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. (Read the full lecture here.)

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 marginalisation 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 jeopardised, 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.