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«Upholding the Australian Constitution Volume Seventeen Proceedings of the Seventeenth Conference of The Samuel Griffith Society Greenmount Beach Resort, ...»

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“It is obvious that some organisms will be either threatened or favoured by tree clearing bans. Yet the proponents of bans clearly imply that this will be good for all t h e S t a t e ’ s b i o d i v e r s i t y. P e r m a n e n t l y s e t t i n g i n t r a i n b a n s t h a t will unarguably change the structure and composition of 70 per cent of the State’s forests and woodland vegetation (30 per cent of Queensland’s total l a n d a r e a ! ) i s a p r e p o s t e r o u s i m p o s t o n o u r present f a u n a and flora. The dense woody plant communities that will result will be r e s i s t a n t t o n a t u r a l disturbances such as fire. We will take from them the one widely accepted element in the distinctive evolution of our flora and fauna 8 – except for rare and grossly destructive holocaust f i r e s ! T h i s i s n o t p r e c a u t i o n a r y – i t i s challenging nature. Our greenies are figuratively p u t t i n g out the f l a m e s with napalm!”.9 There is another way of looking at nature which is informed by evolutionary theory and the science of emergent complexity. This approach does not condone wilful or negligent environmental harm, and recognises the need to prevent harm that is preventable. The critical difference is that, according to the evolutionary viewpoint, there is no pre-ordained ideal state of nature. The environment is a dynamic process that is unfolding in consequence of endogenous forces, including the endeavours of human beings to better their lives. Jennifer Marohasy observes t h a t i t i s now w i d e l y a c c e p t e d t h a t t h e r e w a s no original p r i s t i n e s t a t e, a n d t h a t “competition, a d a p t a t i o n and n a t u r a l selection, sometimes a g a i n s t a backdrop of c a t a s t r o p h i c c l i m a t e change, have driven the evolution of life on e a r t h ”. 10 Even if we assume for argument’s sake t h a t E a r t h is Gaia the superorganism, there is no way that we can know her mind, or what drives her, and what her ideal state is if there is one. All of this does not mean that we cannot or must not prevent harm that is preventable. What it means is that we should be a i m i n g to have a healthy environment, a s a g a i n s t the p u r s u i t of a n i m a g i n a r y, u n a c h i e v a b l e p r i s t i n e s t a t e a t t h e c o s t of all other interests. The removal of technological c i v i l i s a t i o n from the ecological equation, a s t h e f u n d a m e n t a l i s t s demand, will produce d r a m a t i c reactions t h r o u g h o u t t h e world that are hard to predict and impossible to control.

These opinions are not w i t h o u t t h e i r c r i t i c s, and certainly they need rigorous examination and testing. The complaint of this essay is that they are not given the serious consideration they deserve in policy making.

Spuriousness of the precautionary principle Environmentalists have a powerful weapon a g a i n s t science. I t is called t h e precautionary principle. The precautionary principle is t h a t “ w h e r e there a r e t h r e a t s of a serious or irreversible environmental d a m a g e, lack of s c i e n t i f i c certainty should not be used as a reason for postponing measures to prevent environmental degradation”.

The principle is in fact almost an oxymoron. Even as a stranger to science I find it hard to think that scientists always search for scientific certainty before a c t i n g. M o s t s c i e n t i s t s will agree t h a t w h e r e there is a t h r e a t of serious or irreversible environmental damage, preventive measures should not be postponed provided t h a t ( a ) the t h r e a t is real or a t least probable; (b) preventive measures are possible; and (c) the likely d a m a g e w a r r a n t s the cost of prevention. The first premise of t h e p r e c a u t i o n a r y principle cannot be reached without dispassionate scientific investigation. Hence the principle is practically useless as a basis for rationally responding to environmental problems.

In practice, though, the principle allows subjective doomsday alarmism to t r u m p evidence. In the arena of public opinion, d i s p a s s i o n a t e and reasoned argument is hardly a match for doomsday rhetoric. The irony is that doomsday may be hastened more by blinkered green fundamentalism than by objective and balanced scientific investigation that takes account of the dynamic and evolving nature of the world, and the limits of our capacities to design the physical and cultural aspects of life as we wish.

Science, policy and due process I t is s a i d t h a t science and politics do not m i x well. No science is perfectly objective or exact, but h i s t o r i c a l l y the n a t u r a l sciences have insulated t h e i r methodologies from emotive debate better than other disciplines, a l t h o u g h n o t without their own struggles. However, politics tend to intrude on science when p o l i t i c a l decisions depend heavily on scientific theories and findings, a n d environmental law and policy is no exception.

The integrity of science can be compromised at two levels. Firstly it can be compromised by bias at the level of investigation. Secondly, and more commonly, science can be compromised by policy makers t h r o u g h m i s u n d e r s t a n d i n g s or misuse of scientific findings.

If good science is critical to good environmental law and policy, then it i s essential t h a t the processes of environmental policy making, legislation a n d a d j u d i c a t i o n are subject to a p p r o p r i a t e s t a n d a r d s of substantive a n d procedural due process. I t requires, in the m i n i m u m, t h a t views of a l l stakeholders and experts, including government agencies, property owners, t r a d i t i o n a l users, producers, environmentalists, relevant s c i e n t i s t s a n d economists are heard in objective inquiry. The process should not privilege special interests, whether they are those of proprietors or of environmentalists.





Decisions should be taken by independent t r i b u n a l s, and not by bodies s t r u c t u r a l l y biased to p a r t i c u l a r policy positions. The decisions should be judicially reviewable, and where appropriate subject to parliamentary review.

Environmentalism and civil liberties There are growing concerns that aspects of environmental law and policy have unacceptably high costs in terms of t h e i r i m p a c t on civil liberties. Among the

concerns are the following features of environmental legislation:

• Regulatory decisions affecting rights being taken in breach of natural justice by structurally biased tribunals, that deny rights holders reasonable opportunities to present their cases.

• Uncertainty of laws defining environmental offences t h a t m a k e compliance difficult and costly.

• Investigatory powers that are intrusive and compromise due process.

• Negation of t r a d i t i o n a l procedural and evidentiary s a f e g u a r d s in prosecutions for environmental offences, including the reversal of evidentiary burdens usually borne by prosecutors.

• Denial of compensation to property owners for the loss of property rights and diminution of property values.

Given t h a t c e r t a i n environmental objectives are worth achieving, t h e question arises as to who should bear the costs involved in t h e i r a c h i e v e m e n t.

The common law principle is that those who cause damage to others must pay f o r r e p a r a t i o n, b u t b e y o n d t h a t, i f individuals are asked to s a c r i f i c e p r o p e r t y for the benefit of all society, the cost of that sacrifice must be borne by society a s a whole. This is an i m p o r t a n t principle t h a t lies a t the h e a r t of constitutional government, and the case for conservation laws that depart from this principle needs to be rigorously tested.

The Vegetation Management Act 1999 of Queensland – a case of constitutional vandalism The Vegetation Management Act ( VMA ) violates a l m o s t all of the b a s i c principles of c o n s t i t u t i o n a l i s m and good government. The VMA is not a n accident or isolated instance, but a dangerous regulatory model t h a t i s spreading across the economy and society. The Queensland Electoral a n d Administrative Review Commission (EARC), following an extensive investigation, published i t s R e p o r t o n t h e R e v i e w o f t h e O f f i c e of Parliamentary Counsel in

1991. The Queensland Parliament enacted the L e g i s l a t i v e S t a n d a r d s A c t 1992 to implement EARC’s recommendations.

The impressive Act lays down a series of “ f u n d a m e n t a l legislative principles” to be observed by lawmakers in Queensland. These salutary principles p r o c l a i m P a r l i a m e n t ’ s c o m m i t m e n t t o constitutional government. They require t h a t l e g i s l a t i o n h a s r e g a r d t o t h e r i g h t s and liberties of individuals and t h e institution of Parliament, and set out a series of standards that condemn the grant of ill-defined administrative powers, inconsistency with the principles of n a t u r a l j u s t i c e, t h e r e v e r s a l of the onus of proof in c r i m i n a l c a s e s, e n t r y i n t o p r i v a t e premises and search and seizure of p r i v a t e p r o p e r t y w i t h o u t j u d i c i a l w a r r a n t, r e t r o s p e c t i v e i m p o s i t i o n o f deprivations or punishments, compulsory a c q u i s i t i o n of property w i t h o u t paying compensation, g r a n t of i m m u n i t y t o officials from prosecution or civil actions, i n a p p r o p r i a t e delegation of legislative power, the enactment of “Henry VIII clauses” t h a t allow t h e amendment of Acts by delegated legislation, and the removal of delegated legislation from the scrutiny of Parliament. 11 The VMA v i o l a t e s a l m o s t a l l o f t h e s e s t a n d a r d s, r a i s i n g s e r i o u s q u e s t i o n s about the a u t h o r s h i p of the legislation and the level of scrutiny t h a t t h e Queensland Parliament gives to its laws.

Undemocratic lawmaking The VMA establishes an utterly undemocratic form of law making a f f e c t i n g p r o p e r t y r i g h t s i n t h e S t a t e. I n f a c t t h e A c t d o e s n o t m a k e t h e l a w, but leaves legislative power in the hands of the M i n i s t e r and executive officers, to be exercised outside the parliamentary process.

The Act requires t h e M i n i s t e r t o prepare, and the Governor-in-Council t o Gazette, a vegetation management policy for the State. This is not policy in the ordinary sense, but is a l e g i s l a t i v e i n s t r u m e n t t h a t c o n t r o l s t h e o t h e r powers under the Act, in particular the preparation of regional vegetation management codes. 12 Despite i t s binding effect, i t is deemed not to be s u b o r d i n a t e legislation. 13 S i m i l a r l y, d e c l a r a t i o n s ( a n d i n t e r i m d e c l a r a t i o n s ) of holdings a s a r e a s of “high n a t u r e conservation value” or a r e a s “vulnerable to land d e g r a d a t i o n ”, and the codes governing vegetation clearing in those a r e a s, a r e deemed not to be subordinate legislation. 14 Since subordinate legislation requires parliamentary approval, the sole purpose of these exclusions is to remove these instruments from parliamentary scrutiny and hence public debate. 15 Given their legislative nature these instruments are not generally subject to j u d i c i a l r e v i e w. I n s t e a d o f t h e u s u a l legislative p r a c t i c e, t h e A c t e s t a b l i s h e s a consultative process, including review by the Minister’s own advisory committee.

While land owners and the public may present their views, the law ultimately is w h a t the M i n i s t e r wills. This is the classic instance of the process open t o capture by those who engineer it, in this instance the Green lobby. The process is s t r u c t u r a l l y b i a s e d a n d i n s u l a t e d f r o m t h e g l a r e o f public debate. There is no appeal from these Executive laws to Parliament or to the courts.

Retrospectivity, impossibility and the cost of compliance The effects of these instruments are far reaching and costly to property owners.

Freehold and leasehold occupiers of land t h a t becomes the subject of a r e a declarations cannot manage or use their properties as they judge, but must do so in conformity with the “declared area code”. Owners require the authority of c l e a r i n g p e r m i t s e v e n t o m a i n t a i n t h e p r o d u c t i v i t y o f t h e i r l a n d s. At the very least, the declaration increases the landowner’s t r a n s a c t i o n costs in m a n a g i n g the property. I t may reduce the productivity of the land, resulting in loss of income. It is more than likely that a declaration will diminish the market value of the property. I will return to the i m p o r t a n t question of compensation presently, but first the compliance cost deserves a closer look.

A property owner will be required to r e a d a n d construe the legal effect of the “declared area code”. This may s e e m s t r a i g h t f o r w a r d b u t, a s owners have discovered, it is often not. The tree clearing limitations are fixed in relation to Regional Ecosystem Maps (REM), which are binding on land holders unless they a r e a b l e, a t m u c h c o s t, t o s h o w t h a t t h e m a p s are wrong. There are occasions where an REM may change an area of land from a non-remnant vegetation area to a r e m n a n t vegetation a r e a, thereby retrospectively a b r o g a t i n g t h e landholders’ rights to clear, unbeknownst to the landholder. Since such clearing a t t r a c t s c r i m i n a l punishments, the effect is to impose p u n i s h m e n t retrospectively for innocent acts.

In making such retrospective punishment possible, the VMA violates a principle accepted by all civilised nations and declared by Article 15(1) of t h e United Nations Covenant on Civil and Political Rights, t h a t i n n o c e n t a c t s m u s t not be made crimes with retrospective effect ( nullum crimen sine lege). A lawyer b r o u g h t t o m y a t t e n t i o n the case of her client, who cleared some land on t h e verbal assurance from the Department of Natural Resources and Mines that the vegetation was not remnant, and later found that the REM had designated the area as remnant. It took several years for her client to have himself cleared of the alleged offence, during which t i m e the d e p a r t m e n t refused to assess h i s other clearing applications, causing serious economic loss.

Tree clearance p e r m i t s, once issued, may give rise to s i m i l a r problems, particularly when the terms of a permit prove impractical or even impossible to c o m p l y w i t h. A p e r m i t t h a t a l l o w s s o m e s p e c i e s t o be cleared, but n o t o t h e r s, may be a v i r t u a l prohibition if selective clearance may not be p r a c t i c a l or possible given the nature of the forest. It is a basic principle of all civilized legal systems, and a rule of common law, that the law must not ask the impossible ( lex non c o g i t a d i m p o s s i b i l i a ). A n e n a c t m e n t t h a t r e q u i r e s the impossible i s not a law but a directly punitive act.

Negation of the separation of powers and natural justice The enforcement provisions of the VMA violate the m o s t f u n d a m e n t a l requirements of criminal justice and should concern every civil l i b e r t a r i a n. The intrusive investigatory powers, the coercive e x t r a c t i o n of evidence, t h e conferment of judicial powers on executive officers, the reversal of the burden of proof, the various presumptions favouring prosecutors, and the use of criminal history, combine to create a regime more reminiscent of a police state than of a l i b e r a l d e m o c r a c y. A d e t a i l e d a n a l y s i s is not possible, hence I will discuss t h e most pernicious provisions.



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