Law and justice part company - Tasmanian Pulp Mill

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 statutory law.

One of Australia’s pre-eminent 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.

There is no doubt that local communities across Tasmania 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: