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.” (December 4, 2008.)
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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”.
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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.
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