THE open letter sent to politicians detailing concerns about government's relationship with the timber industry.
An Open Letter to Tasmanian Politicians on the Governance of Tasmania's Timber Industry
A healthy democracy depends on more than casting regular ballots. It also depends on transparency; on faith in the processes by which decisions are made; and on citizens' concerns being fairly heard. Sadly, this fundamental trust between the governed and the government has broken down in Tasmania. This is an important issue for the upcoming election and beyond.
Recently, a survey of public opinion1 found that most Tasmanians think there is an unhealthy relationship between the timber industry and politicians in Tasmania. Half of people surveyed felt:
That the timber industry is a source of corruption in Tasmania; and
Disempowered because they believe 'the major parties are both too weak to take on the interests of big business.'2
Such perceptions reflect systemic governance problems, including the following.
1. Many processes associated with Gunns Limited's pulp mill proposal raise grave concerns.3
2. Relevant regulatory regimes provide one set of rules for forestry and another for everyone else. For example, most regional forest agreement (RFA) forestry operations are exempt from the Environment Protection and Biodiversity Conservation Act 1999 (Cth).4 The Tasmanian RFA, as varied by Premier Lennon and Prime Minister Howard during the Wielangta Case, does not protect endangered species.5
3. Forest practices are also exempt from key aspects of Tasmania's resource management and planning system.6
4. Forestry Tasmania (FT) has too many potentially conflicting functions, including:
4.1 Development, control and delivery of policies governing: land use for State forest; sustainable forest management; wood production;7 and its commercial operations.8
4.2 Exclusive management and control of all State forest and all associated: forest products; forest operations; permits, licences, forest leases and other occupation rights.9
4.3 Many other functions.10
5. FT's statutory obligation to make available for industries each year, from multiple use forest land, a 'minimum aggregate quantity' of specified log types11 overrides all else. This removes the flexibility needed for adaptive management to meet competing goals (eg sustainability, environmental protection), emerging markets (eg carbon), new science or changing community values.
6. FT's joint ventures12 can cover large areas of public land and operate without applying FT's obligations under the Forestry Act 1920 (Tas) and the Government Business Enterprises Act 1995 (Tas)13.
7. The recommendation of the Tasmanian Parliament's Joint Standing Committee on Environment, Resources and Development (July 2007) to amend the Forestry Act 1920 (Tas) s 12A has not been enacted.14
8. People in government, the forestry industry, forest-based businesses, and others may feel unable to publicly express concerns for fear of suffering adverse consequences.
To start addressing these problems, law reform is needed to:
A. Revoke at least section 11 of the Pulp Mill Assessment Act 2007 (Tas).
B. Address the exemptions for RFA forestry operations in the federal EPBC Act.15 Alternatively, the Tasmanian Regional Forest Agreement should be abandoned.
C. Remove exemptions for forest practices from key aspects of Tasmania's resource management and planning system, eg the Historic Cultural Heritage Act 1995 (Tas)16, Land Use Planning and Approvals Act 1993 (Tas)17, and the Threatened Species Protection Act 1995 (Tas)18. A level playing field must be established where these laws apply equally to all industries.
D. Amend the Forestry Act 1920 (Tas) to eliminate statutory conflicts of interest and restore accountability, then restructure FT accordingly.
E. Revoke, or at least reduce, the 'minimum aggregate quantity' of logs FT must make available each year from multiple use forest land and overhaul the Forest Practices System.
F. Apply the Forestry Act 1920 (Tas) to both the establishment and operation of FT's joint ventures.
G. Enact the recommendation of the Tasmanian Parliament's Joint Standing Committee on Environment, Resources and Development (July 2007) to amend the Forestry Act 1920 (Tas) s 12A.
H. Enact legislation to properly protect freedom of speech and whistleblowers, and prevent strategic litigation against public participation (SLAPP) suits.
We, the undersigned, call on Tasmania's political leaders to make clear their positions on the above proposed reforms. If elected, will you support these reforms?
Signatories:
The Honourable Justice Pierre Slicer, retired judge of the Supreme Court of Tasmania
Roland Browne, Legal Practitioner, Hobart
Tom Baxter, School of Accounting and Corporate Governance, UTAS
Dr Paul Blacklow, School of Economics and Finance, UTAS
Professor Peter Carroll, School of Accounting and Corporate Governance, UTAS
Dr Aidan Davison, School of Geography and Environmental Studies, UTAS
Dr Julie Davidson, School of Geography and Environmental Studies, UTAS
Wendy Fleet, School of Accounting and Corporate Governance, UTAS
Kathy Gibson, School of Accounting and Corporate Governance, UTAS
Dr Brendan Gogarty, Faculty of Law, UTAS
Dr Peter Hay, School of Geography and Environmental Studies, UTAS
Terese Henning, Faculty of Law, UTAS
Dr Lorne K. Kriwoken, School of Geography and Environmental Studies, UTAS
Dr Gail Lugten, Faculty of Law, UTAS
Professor Jeff Malpas, School of Philosophy, UTAS, and Australian Research Council Australian Professorial Fellow
Dr Peter McQuillan, School of Geography and Environmental Studies, UTAS
Dr William Maguire, School of Accounting & Corporate Governance, UTAS
Professor Gary Meyers, Faculty of Law, UTAS
Professor Gary O'Donovan, Acting Pro Vice-Chancellor - Students and Education, UTAS
Dr Emma Pharo, School of Geography and Environmental Studies, UTAS
John Pugh, School of Accounting and Corporate Governance, UTAS
Dr Olivia Rundle, Faculty of Law, UTAS
Sonia Shimeld, School of Accounting and Corporate Governance, UTAS
Tony Stanger, School of Accounting and Corporate Governance, UTAS
Michael Stokes, Faculty of Law, UTAS
Associate Professor Graeme Wells, School of Economics and Finance, UTAS
Professor Rob White, School of Sociology and Social Work and Director - Criminology Research Unit, UTAS
Dr Graham Wood, School of Philosophy, UTAS
Notes:
1 Essential Research (October 2009), Survey Final Report, 'Executive Summary' at 7 reported:
'Corruption and disempowerment
60% of people surveyed think there is an unhealthy relationship between the timber industry and politicians in Tasmania. Just over half (51%) of people surveyed agree that the logging industry is a source of corruption in Tasmania. 51% think that cleaning up corruption in the logging industry would go a long way to cleaning up the rest of the government. 49% of people agreed that it doesn't matter how much I vote, because the major parties are both too weak to take on the interests of big business.'
2 Ibid.
3 See eg Tom Baxter and Roland Browne, 'Probity Issues Connected with the Tasmanian Pulp Mill' (paper presented to the Australian Public Sector Anti-Corruption Conference), Brisbane, 28-31 July 2009, ; Fred Gale, 'Present Consequences of Past Deals: Clientelism, Forest Policy and Tasmania's Tamar Valley Pulp Mill' (paper presented to the Public Policy Network Conference 2010, Hobart, 28-29 January 2010) .
4 Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 38-42, 75(2B). See also Regional Forest Agreements Act 2002 (Cth) s 6(4).
5 Tom Baxter, 'Submission to Independent Review of the Environment Protection and Biodiversity Conservation Act 1999' (January 2009) at 6-9.
6 See proposal A below.
7 Forestry Act 1920 (Tas) s 8(a).
8 Forestry Act 1920 (Tas) s 8(b).
9 Forestry Act 1920 (Tas) s 8(c).
10 Forestry Act 1920 (Tas) ss 8(d)-(h).
11 Forestry Act 1920 (Tas) s 22AA.
12 Forestry Act 1920 (Tas) s 24.
13 Joint Standing Committee on Environment, Resources and Development, Parliament of Tasmania, Joint Venture Log Supply Deal, (July 2007) at 10.
14 Ibid at 6.
15 Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 38-42, 75(2B) exempting RFA forestry operations. Just before Christmas, the Rudd Government released the Final Report of the Independent Review of the EPBC Act and rejected the Report's recommendation to address s 38: Minister Garrett, 'Release of the Hawke Report', Media Release, 21 December 2009 .
16 Historic Cultural Heritage Act 1995 s 3 definition of "works".
17 Land Use Planning and Approvals Act 1993 (Tas) s 3(1) definition of "works".
18 Threatened Species Protection Act 1995 (Tas) s 51(3).
GNS Price at posting:
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