Tasmanian justice - extinct or just threatened ...

Many of us were startled to hear Paul Lennon invoke the term "natural justice" in defending the ex-gratia 650 grand payout to Richard Butler.

After all, this is the same state where natural justice principles are trampled every time someone takes their objections to the Forest Practices Board or Tribunal.. A fundamental precept of natural justice is that an adjudicator be impartial. An equally basic maxim of law is that no one should be judge of their own case.

The question here is whether justice, natural or otherwise, is available to Tasmanians other than mates such as Butler, forestry, and Federal Hotels. A survey of both the legislation and the performance of our administrators reveals a system worthy of a failed state.

A Logger's dream

A good test of the integrity of our legislation is how impartially it treats an industry with enormous influence in government. My personal experience has been largely with the forestry industry many see as the de facto government of the state.

The establishment of Forestry Tasmania resulted in most of the state's public forests being put under the management of a corporation exempted from Freedom of Information requirements. Their management has produced a system where private logging interests obtain for their own plantations the rent-free use of public land they have clearfelled., thereby encouraging the fastest possible logging. There is virtually nothing the public is permitted to do about this.

On private land, the conversion of native vegetation is unimpeded, as it is in no other state, by native vegetation clearance legislation. It is mightily encouraged by special tax concessions for plantation establishment, which allow the plantation manager to buy forest land, clear it, establish plantation, and still pocket a large portion of the investor's money.

The Tasmanian system is a blueprint for the fastest possible clearance of native forest, a process which has proven a net financial loss to the Tasmanian public and a still uncosted environmental loss to the present and future. To get away with this requires considerable legislative protection, which forestry has duly received.

The Forest Practices Act (FPA)

The FPA is father of the Orwellian quasi-judicial system mentioned above, creating both the industry's self- regulator, the Forest Practices Board (FPB), and the appellate body for appeals against the decisions of the Board, the Forest Practices Tribunal (FPT). These two bodies share the same address, previously the same email, some of the same staff, and are appointed on the nomination of the same department.

Nearly anywhere else, this would create a powerful case based on the natural justice grounds of perceived bias. Such a case would elsewhere be bolstered by the fact that the FPB's Private Timber Reserve (PTR) and Forest Practices Plan (FPP) decisions, for which no reasons are provided, are all but invariably in favour of the industry, and are upheld by the FPT by a similar percentage.

The Private Timber Reserve

The PTR is one of the star attractions in Tasmania's legislative goon squad. It is essentially an easement to the logging industry, attended by an array of privileges and exemptions that would befit a medieval king.

The government claims the PTR was created to provide security that a plantation can be harvested when the time comes. If so, it seems an extreme overreaction; there seems to be no instance in Tasmania where harvesting has ever been prevented. The far more obvious attractions, for the industry at least, are the power it gives them over client landowners, and the immunity it provides from planning and environmental legislation.

A PTR is very unusual in compelling the grantor/ landowner to pay $350 for an arrangement which protects only the plantation manager's financial interests. A little noticed detail is a dormant clause which could easily be activated to make this easement perpetual.

The powers of the FPB have been steadily and shamelessly augmented by legislative amendments every time a legal hurdle presents itself. In 1998, amendments were passed , after a Supreme Court setback, to allow a landowner to bypass council by effectively granting a discretionary power over forestry to the FPB. Not long after, the FPB was granted Threatened Species jurisdiction over logging operations after a Resource Management and Planning Appeals Tribunal (RMPAT) loss. Early this year, the FPB was given the power to override RMPAT in respect to granting PTRs after the mere possibility of that tribunal blocking forestry was raised in a court case.

The spread of PTRs is alarming, now covering around 400,000 hectares of private land. Details on how much of Tasmania's 900.000 ha of privately owned forest has been destroyed in this process is unavailable, but forests are naturally the preferred sites for new plantations.

If it is happening next to you, you have a fairly empty shot locker. You can object to PTR by the FPB, but this is almost invariably futile. If you wish to appeal the FPB approval to the FP Tribunal, your property boundary must be within 100 metres of the actual PTR, which is often within the neighbouring property and can be artfully drawn to be 101 metres from you.

If you meet the 100 metres test, you then have to meet the sole grounds on which a neighbour may object, which is that you would be "directly and materially disadvantaged" by logging on an adjoining block. Despite the fact that this phrase exists nowhere else in Australian law, and despite evidence of severe property devaluation on nearby properties, the FT Tribunal has not bothered to even define it in rejecting every neighbours' appeal.

A court challenge last year at last forced the FPT to define the term. The Supreme Court judge roundly rejected their impossibly narrow definition as an error of law, and substituted his own vastly broader definition, which greatly advantages objecting neighbours. The recent and very unorthodox Supreme Court decision to mandate the awarding of costs against unsuccessful tribunal hearing parties, which goes against the entire rationale of tribunals as an alternative to hugely expensive court action, should be an antidote to this levelling of the playing field.

Forestry's privileges are augmented by a battery of statutory provisions elsewhere. The plantation or native forest on a PTR are exempt from valuation, meaning rates are paid only on the unimproved value of the dirt beneath, which may be 10% of the plantation's market value. The immunities can be amazingly ad hoc: while a residuary heir to a property can normally sue a life tenant for stripping the assets of that property, this remedy is specifically barred if the life tenant does so through forestry.

Even tied Federal funds are not safe . Natural Heritage Trust funds designated for reforestation have been turned to funding Private Forests Tasmania, an agency zealously working to convert as much native forest to plantation as possible.

Logging v Your Life - No Contest

Few events have exposed the Government's allegiances more starkly than their response to the Scammell/Bleaney report on oyster deaths at Georges Bay.

That highly defensive response has been virtually identical to that of the logging industry in its preoccupation with discrediting the report, and its corresponding lack of concern about the potential dangers.

Like cigarette manufacturers of yore, they have been demanding a forensic standard of absolute proof that the sprayed chemicals caused the deaths. This contrasts strangely with their cessation of testing from 1996-2003, a period in which the increase in spraying was rapid and need for testing increasingly apparent. Conspicuously absent from their rebuttals has been acknowledgment of the steadily rising incidence of oyster deaths and deformities correlating closely with the expansion of plantations in the catchment flowing into the bay.

An observer could be forgiven for suspecting that the resumed testing is designed to find nothing. Samples are reportedly taken during dry periods when little or no run-off will be found, and when macro-invertebrate populations would have had time to recover. Equally little reassurance can be gleaned from such tactics as substituting cypermethrin for the vastly more toxic alpha-cypermethrin, which could be likened to a distillate of the toxic elements in cypermethrin, in their official rebuttals. Likewise for their belittling of the danger posed by the mere 29 kg of alpha-cypermethrin used on one 1000ha property. This amount is in fact sufficient to contaminate more than 7 million Olympic pools at levels toxic to marine life.

The controversy has exposed the fact that the government seemingly has little knowledge or control of the amounts or types of chemicals used in our catchments, some of which are banned elsewhere. It also has seemingly little interest in knowing about or controlling them. The arrangement under which Gunns has the right to withhold results of tests on water samples from its coupes seems to be in breach of the Public Health Act.

Tasmanians thus far seem ready to tolerate both laws and a public service which will countenance not only financial detriment, but also risks of illness, birth abnormalities, and death, for the commercial convenience of one company. Why?

A Long Slide?

While it was a commonplace to view Tasmanian Aborigines as a degenerate and doomed race, my personal experiences with the Tasmanian Government has inclined me toward the opinion that it may be better applied to them. A 1998-2000 stoush with the Resource Planning and Development Commission, as agents for forestry, was an epiphany.

It began with a notice in the paper of a council planning scheme amendment involving the change of the forestry zoning on two blocks of land in Meander Valley from "prohibited" to "discretionary". The notice gave no indication of the blocks' locations. A tip-off from a council employee revealed that both were in a rural residential zone.

It was immediately apparent that the RPDC's announced reason for the amendments, "to avoid unnecessary Supreme Court action", was invalid under planning legislation. It shortly emerged that the court action referred to involved a procedural breach in the formulation of the municipality's planning scheme that rendered all the forestry zoning invalid.

The draft planning scheme had shown all the non-urban forestry zoning as "discretionary". When the Scheme was declared, however, the forestry zoning on all rural land had been changed to "permitted", while that of the four small rural residential zones had been changed to "prohibited". Neither of these changes had been re-exhibited for public comment as the law requires, and both were therefore invalid.

Everyone in the municipality had been denied their lawful right to object. The RPDC, however, was proposing to allow comment to only two parties. Both owned blocks in a rural residential zone, and both just happened to want plantations. The whole manoeuvre was patently illegal.

What followed was like a Marx Brothers script without the humour. Apparently having presumed that no one would even respond to their notice, RPDC proceeded to simply ignore the fatal discrepancy in their amendment. Repeated correspondence on the point was unable to elicit any acknowledgment that the issue had been raised. A hearing was scheduled.

The hearing followed earlier form. The fatal flaw I had raised was disposed of by the two RPDC commissioners declaring that they had simply not seen my written submission, and in any case were not qualified to rule on legal matters. Shortly after the hearing, the newly installed Bacon Government amended the Forest Practices Act to effectively hand a council's discretion on forestry to the Forest Practices Board.

Subsequent to the hearing, all the objectors twice received copies of the Forest Protection Society's inane thirteen-page submission, complete with Barry Chipman's "Dear Mick" covering letter to the RPDC Executive Officer, referring to the latter's request for the material and demonstrating that RPDC had done the photocopying. The objectors had been told that they would have to provide all copies of anything they wanted distributed. An incredulous call to a RPDC commissioned brought only the explanation that he had thought it "appropriate".

RPDC's hearing report was breathtaking. The Forest Protection Society's contention that all bush on private land requires "intensive landscape management " (i.e. logging) was cited as an accepted fact. A witness who gave damaging evidence of the devaluation of property caused by the forestry onslaught at Ellendale disappeared from the proceedings altogether. The fatal flaw I had verbally raised at the hearing likewise disappeared. The anomalous forestry zoning on the two blocks, opposed by every resident of the zone bar one, was approved.

Attempts to obtain tapes or transcript of the hearing were met with the explanation that they could not be located and, the Archives Act notwithstanding, may have been thrown away. When legal action began to loom, RPDC announced that they had found the tapes, but that no facility existed in Tasmania to reproduce microtapes ( the closest such facility was two blocks away from RPDC). They finally forwarded a transcript, the great bulk of which were utterly incoherent fragments and gibberish. The exceptions were a couple of perfect records of pro-forestry evidence.

The gross irregularities of the RPDC hearing process, added to the intrinsic illegality of their amendment, made legal action seem as open-and shut as imaginable.

There were some ominous signs on the way to the Supreme Court judgment. One of the pro-forestry individual had refused to accept registered post service of orders, but had made an attested statement that he wanted no part in the proceedings. A judge nonetheless ordered that I pay for service by process server to all sixteen potential parties. My counsel did not object.

The DPP, representing RPDC, announced that he would seek an adjournment so that the issue could be determined by the Forest Practices Tribunal. The Tribunal's inevitable approval of PTRs on the two properties, would have circumvented my action. I wrote personally to the DPP asking if he was subject to any code of conduct, and whether he was observing it here. He (unsuccessfully) demanded an apology through my counsel.

I still saw no way I could lose. At the trial the DPP made untrue assertions on behalf of RPDC. Most notable of them was that the two landowners had been denied the chance to be heard, meaning in law that only these two had been so disadvantaged. My counsel said nothing, prompting me to pass him a note instructing him to correct an assertion not only false but absolutely essential to any chance of RPDC succeeding.

To my astonishment, he said nothing . At a subsequent recess, he informed me to my even greater astonishment that he had seen my note, but had not raised the issue because "it was not relevant". I could only seek comfort in the fact that the history of the planning scheme process were contained in my affidavit, which should have compelled the judge to examine the record and ascertain the facts in making his judgment.

The judgment found for RPDC. The judge called the DPP's assertion that only the two pro-forestry landowners had been denied natural justice an "undisputed" fact. He disposed of the problem of RPDC's express, unlawful reason for the amendment, "to avoid unnecessary Supreme Court Action" by ruling that they had in fact not made the decision for that reason, because the eventuality which they were seeking to avoid had not happened.. He also found that no reasonable person could perceive bias in RPDC's report, despite the fact that it came to the only decision that could temporarily avoid the eventuality they stated they were seeking to avoid.

My counsel's appointment to the Supreme Court was announced two days before the judgment was handed down. He responded to none of my communications during the period for lodging appeals. No-one else appeared keen to touch it. Frankly, I had lost both faith and nerve.

Though I subsequently won a court action on a related matter, I still suspect the first case was more reflective of the norm.

On its present trajectory, Tasmania seems headed for ruin. The Government seems capable of getting away with virtually anything, evidenced by such outrages as the giveaway to Federal Hotels, the sham land swap with Forestry Tasmania, and their probably deliberate dereliction in safeguarding either the quality or quantity of our water.

Though it helps to have no mainstream news media worthy of the name, the responsibility ultimately falls on an electorate seemingly impervious to a sense of injustice.

John Hayward lives on a small holding in Weegena

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Wednesday, September 1, 2004

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