Tasmanian political rot: the 'Pulp Mill Assessment Act' revisited

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.