Law and justice part company - Tasmanian Pulp Mill

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.

In October 2007 the Institute finalised 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; and
• 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.

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”.

It has been suggested that to prevent the further deterioration of democracy in Tasmania it is possible 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.

However, 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 scepticism that the Lennon government and the Liberal alternative seek anything better, because that could undermine their personal and partisan political ambitions.

We need a Tasmanian magna carta, but it is unlikely to be achieved by those from inside the self-seeking party machinery that controls the immediate future of Tasmania’s fragile and weakened democracy.