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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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The g u i l t o f a person accused of a vegetation clearing offence under t h e VMA need not be determined by a court but may be conclusively established by an a u t h o r i z e d officer, a functionary under the command and control of t h e M i n i s t e r a n d h i s d e p a r t m e n t. ( T h e j u d i c i a l t r i a l s m a n d a t e d by Division 3 of P ar t 4 o f the Act have no applica t ion t o v e ge t a t ion c le a ring offences under t h e VMA). I f a n a u t h o r i s e d o f f i c e r i s s u e s a c o m p l i a n c e n o t i c e, a f a i l u r e t o comply without a reasonable excuse results in an automatic penalty. 16 I f t h e a c c u s e d i s a corporation the penalty increases five-fold. 17 The innocuous term “compliance n o t i c e ” m a s k s t w o s t a r t l i n g f a c t s. Given the u n c e r t a i n t i e s of the law discussed previously, the a u t h o r i z e d officer’s compliance notice becomes a legislative a c t. I t s t a t e s w h a t the law is w i t h respect to the property in question. As one landholder remarked a t a recent conference I a t t e n d e d, t h e l a w is declared a t the point when the a u t h o r i z e d officer alights from his Toyota! The second extraordinary fact is that the issue of the compliance notice is simultaneously a s t r a i g h t f o r w a r d conviction a n d sentence w i t h o u t t r i a l. The compliance notice is both the charge and t h e conviction, collapsed into one.

Moreover, the a u t h o r i z e d officer does not have to come to an objective determination on facts or law. He or she need only “reasonably believe” that the landholder is c o m m i t t i n g a vegetation clearing offence or h a s c o m m i t t e d a vegetation clearing offence. 18 T h i s i s not the end of t h i s incredible scheme. The a u t h o r i s e d officer not only makes a s u m m a r y conviction but is also empowered to enforce t h a t conviction. Under s. 55(5) the authorized officer may “use reasonable force and take any other reasonable action to stop the contravention”; and to m a k e matters worse for the landholder, the cost or expense of this enforcement may be recovered as a debt owing to the State.

T h e A c t a l l o w s a l i m i t e d a p p e a l t o t h e M a g i s t r a t e s ’ C o u r t w i t h i n 2 0 days against the decision to issue the compliance notice, but not on the existence of a reasonable excuse or on the penalty. 19 C o n t r a s t t h i s w i t h infringement notices under other laws. A speeding ticket or parking ticket is n o t a j u d g m e n t of my guilt. If I ignore it, the police must charge me and have me convicted by a court after a fair trial. Not so the authorized officer, who may proceed to physically enforce his own order (compliance notice) w i t h o u t having to seek a j u d i c i a l determination.

The VMA installs a process far more objectionable than the procedure that t h e H i g h C o u r t in Brandy’s Case 20 condemned for offending the s e p a r a t i o n of powers in the Commonwealth C o n s t i t u t i o n. The f a c t t h a t S t a t e C o n s t i t u t i o n s have no explicit s e p a r a t i o n of powers does not make t h i s scheme any less reprehensible.

T h e p o w e r s o f t h e a u t h o r i z e d o f f i c e r r e c a l l t h e a u t h o r i t y of t h e i n f a m o u s Star Chamber. They combine legislative, judicial and executive powers in the one person. If this does not alarm our learned judges, lawyers, politicians and civil society leaders, Australian constitutionalism is in serious trouble.

Section 55 and the rule in Kable’s Case I t is possible t h a t, despite the absence of s e p a r a t i o n of powers in the Queensland Constitution, the enforcement procedure of s.55 may n o t s u r v i v e a constitutional challenge. I like to think t h a t t h e H i g h Court will regard t h i s a s s a u l t on the rule of law a s a t least equally dangerous to representative government as State free speech limitations it has condemned in cases such as Theophanous v. Herald & Weekly T i m e s L t d, 21 Stephens v. West Australian N e w s p a p e r s L t d, 22 and Lange v. Australian Broadcasting Corporation. 23 These rulings were based on the importance of the freedom of communication on public m a t t e r s to representative democracy. Is not representative democracy s i m i l a r l y undermined when legislative, j u d i c i a l and executive powers a r e combined in the hands of unelected officials who may abrogate the rights and liberties of citizens in ways that leave them with little recourse to the courts or Parliament?

As much a s I hope t h a t the High Court would recognise an i m p l i e d separation of powers in the State Constitutions, I do not expect that to happen, g i v e n t h e p o s i t i o n t h a t t h e C o u r t h a s h i s t o r i c a l l y held on the powers of S t a t e Parliaments. However, I have little doubt that the High Court has good grounds to invalidate the s. 55 procedure on the narrower principle established in Kable v. Director of Public Prosecutions. 24 In brief, the principle in Kable declares t h a t a S t a t e court m u s t not be given non-judicial powers of a kind t h a t are incompatible w i t h t h a t court’s exercise of the judicial powers of the Commonwealth. In that case, the power to order the continued detention of a named prisoner after the end of his term of imprisonment was held to be inconsistent with the exercise of f e d e r a l j u d i c i a l power. Justices Gaudron, McHugh and Gummow emphasised the fact that State courts were p a r t s of an i n t e g r a t e d system of courts established by t h e Commonwealth Constitution, such that measures undermining public confidence in S t a t e courts would offend the Commonwealth Constitution’s s e p a r a t i o n of powers. Gaudron J observed that the Act directed at Kable makes a mockery of t h e j u d i c i a l process, and hence “weakens confidence in t h e i n s t i t u t i o n s which comprise the j u d i c i a l system brought into existence by Ch III of t h e C o n s t i t u t i o n ”. 25 The question then is whether the enforcement provisions of s. 55 of the VMA involve the Queensland courts in a f u n c t i o n t h a t w e a k e n s public confidence in those courts in a way t h a t is incompatible w i t h t h e i r exercise of federal judicial power.

An appeal lies to the M a g i s t r a t e s ’ Court a g a i n s t a compliance notice.

However, as previously mentioned, it is clear from a reading of s. 62 t h a t t h e only question before t h e M a g i s t r a t e s ’ C o u r t is whether t h e a u t h o r i z e d officer “reasonably b e l i e v e d ” t h a t a v e g e t a t i o n c l e a r i n g offence is b e i n g c o m m i t t e d o r has been committed. Whether or not the person had a reasonable excuse for noncompliance is not within the purview of t h e M a g i s t r a t e s ’ C o u r t a s t h e l a w i s cast. The most liberal interpretation that we can give s.62 would only mean that the M a g i s t r a t e s ’ Court may consider whether the a u t h o r i z e d officer h a d sufficient evidence to reasonably believe t h a t a “vegetation offence is being committed or has been committed”.

W h a t is t h a t e v i d e n c e ? I t is evidence t h a t the a u t h o r i z e d officer or t h e d e p a r t m e n t h a s g a t h e r e d, b u t w h i c h h a s n o t b e e n t e s t e d b y i m p a r t i a l inquiry.

Since the charge and the conviction are one and the same, the M a g i s t r a t e s ’ Court can only decide whether t h e a u t h o r i z e d o f f i c e r h a d reasonable cause t o bring the charge. The decision t h a t t h e M a g i s t r a t e m a k e s i s not whether t h e

–  –  –

Reversing the burden of proof Division 2 of the VMA, dealing w i t h evidence, effects a t o t a l reversal of t h e burden of proof in t r i a l s concerning tree clearance. Section 65 makes i t unnecessary to prove that official acts are done within the authority of the Act.

A certificate issued under s. 66B is deemed sufficient evidence of the accuracy of remotely sensed images and the official conclusions drawn from them.

The key issues in a tree clearing offence are:

• Whether a s t a t e d a r e a is, or is likely to be, an a r e a of r e m n a n t vegetation; and

• Whether in fact vegetation in a stated area has been cleared.

A c e r t i f i c a t e u n d e r s. 66B c o n s t i t u t e s evidence of the above two m a t t e r s. In short, the certificate makes it unnecessary for the prosecution to prove its case but necessary for the landowner to disprove it. This is a negation of due process i n c r i m i n a l a n d c i v i l m a t t e r s t h a t i s f u n d a m e n t a l t o civil liberty. Not content w i t h t h i s a r s e n a l o f p r o s e c u t o r i a l w e a p o n s, t h e p e r p e t r a t o r s o f the VMA have even removed from land owners the defence of mistake of fact. 26 These provisions cumulatively deny landowners the basic s a f e g u a r d s of procedural j u s t i c e available even to persons accused of the most heinous crimes.

Taking property without compensation The VMA and other related legislation fail to provide compensation for the loss of property value t h a t results from the i m p o s i t i o n of land use r e s t r i c t i o n s.

Under the VMA the S t a t e is not intervening to prevent p r i v a t e or public nuisances, in which event no compensation is owed. On the contrary, property v a l u e s d i m i n i s h b e c a u s e t h e S t a t e i s l i m i t i n g t h e p r o p e r t y ’ s u s e a n d enjoyment to serve what it considers to be the public interest in conservation. The S t a t e thus converts private property to public use and hence should compensate t h e owner. The duty to compensate owners for property taken for public purposes is a principle of justice. The cost of public benefit must be met by the public, and not by individual owners whose property is taken.

If the Commonwealth limited land use for conservation purposes, it would amount to an acquisition of property for which just compensation must be paid u n d e r s e c t i o n 5 1 ( x x x i ) o f the Commonwealth C o n s t i t u t i o n. When the question arose in C o m m o n w e a l t h v. T a s m a n i a ( T h e T a s m a n i a n D a m C a s e ), 27 only four of the seven Justices addressed the issue, t h e o t h e r t h r e e f i n d i n g i t unnecessary, having decided the case on other issues. Justices M a s o n, M u r p h y and Brennan thought that the restriction of land use, though limiting Tasmania’s ownership r i g h t s, did not result in the Commonwealth acquiring any property. J u s t i c e Deane on the contrary found t h a t the absence of a m a t e r i a l benefit for t h e Commonwealth did not prevent the conclusion t h a t t h e r e w a s an a c q u i s i t i o n, holding that the property acquired was the benefit of the prohibition. 28 In the later case of Commonwealth v. Western A u s t r a l i a, 29 t h e H i g h C o u r t considered whether the issue of a Commonwealth authority to carry out defence practice on land within the State amounted to an acquisition of property in the minerals reserved f o r t h e S t a t e. The m a j o r i t y h e l d t h a t f r e q u e n t o r prolonged a u t h o r i z a t i o n s could conceivably amount to a n a c q u i s i t i o n of property in t h e minerals, but dismissed the appeal on the ground that there was no evidence of the frequency of the authorizations. Justices Callinan and Kirby, on the contrary, considered the extent of authorization to be irrelevant, and held that there was

an acquisition of property. In so deciding, Justice Callinan stated that:

“The Declaration [made in t h i s case] may be compared to a r e s t r i c t i v e covenant; if one person (for his or her own reasons) wishes to s t e r i l i z e o r r e s t r i c t the usages of another person’s l a n d, t h e l a t t e r, i n a free m a r k e t place, would demand recompense and the former would be expected to pay i t ”. 30 Despite the lack of clear judicial authority on this issue, there is a strong a r g u m e n t t h a t the r e s t r i c t i o n of land use for conservation purposes is a n a c q u i s i t i o n. T h e g o v e r n m e n t i s t a k i n g a w a y a p r o p e r t y r i g h t t o achieve one of its p u r p o ses. The purpose need not be direct m a t e r i a l u s e o f t h e p r o p e r t y. In sequestering the trees, the government is sequestering carbon t h a t offsets t h e carbon emissions by other groups of i n d u s t r i a l i s t s and consumers. The government acquires the carbon r i g h t s to the trees t h a t are saved by i t s prohibition, that it then tacitly passes on to others.

S e c t i o n 5 1 ( x x x i ) o f t h e C o m m o n w e a l t h C o n s t i t u t i o n i s not binding on t h e S t a t e s. H o w e v e r, i f a S t a t e i n a c q u i r i n g p r o p e r t y i s a c t i n g a s t h e a g e n t of t h e Commonwealth to execute a Commonwealth purpose (such a s observing t h e Kyoto t a r g e t s a s a m a t t e r of foreign policy), i t is conceivable t h a t the j u s t t e r m s requirement will apply, p a r t i c u l a r l y if the Commonwealth is g r a n t i n g funds for this purpose under s. 96 of the Constitution. 31 Apart from constitutional principle and the demands of justice, the denial of compensation is d a m a g i n g to good governance. The denial of compensation eliminates the discipline that the price mechanism brings to decision making. A government that need not compensate owners has less reason to “get i t r i g h t ” t h a n a government t h a t m u s t. The uncoupling of power and f i n a n c i a l responsibility allows governments to seek s h o r t t e r m p o l i t i c a l dividends. I t promotes politics and ideology over facts and science.

Conclusion The VMA was supposed to combat environmental vandalism, but i t s p r o v i s i o n s h a v e v a n d a l i z e d A u s t r a l i a ’ s c h e r i s h e d constitutional principles. The principles that have been sacrificed are not merely principles of c o n s t i t u t i o n a l i s m a n d j u s t i c e, but also of good governance. P a r l i a m e n t a r y scrutiny and public discussion of delegated legislation, n a t u r a l j u s t i c e and procedural f a i r n e s s, evidentiary s a f e g u a r d s, and compensation for government t a k i n g s m i l i t a t e against arbitrary and erratic government. All these precautions are subverted by the VMA.

The VMA epitomizes the current philosophy and methodology of environmental regulation in Australia. It is a model that is replicated at State and federal levels. I t is not clear a t all t h a t these e x t r a o r d i n a r y regulatory schemes are benefiting Australian society. As discussed in this paper, there is a strong body of scientific opinion that challenges the utopian aspirations and the efficacy of this model to promote the health of the environment.

The reason why these dissenting voices are largely disregarded by governments, media and a c a d e m i a is not easy to f a t h o m. I t is possible t h a t environmental f u n d a m e n t a l i s m h a s become endemic in these key sectors a s a result of several decades of unchallenged proselytizing. It is also t h e f a c t t h a t sober reflection is no match for apocalyptic alarmism in the contest for public opinion. P o l i t i c i a n s follow the currents of opinion. Until public opinion i s swayed to the cause of a more open and objective debate about conservation, we are unlikely to see a change in p o l i t i c a l will, and constitutional government in t h i s country, and the well-being of A u s t r a l i a n society, will r e m a i n in serious jeopardy. 32


1. D Hume (1748 [1975]), Enquiries Concerning Human Understanding and Concerning the Principles of Morals, 3rd edn, Oxford: Clarendon, 541.

2. Encyclopaedia Britannica, vol 16 (1986) 732.

3. F A Hayek (1978), The C o n s t i t u t i o n o f L i b e r t y, Chicago: The University of Chicago Press.

4. F A Hayek (1976-1983), L a w L e g i s l a t i o n a n d L i b e r t y, London: Routledge and Kegan Paul.

5. B Lomborg, The S k e p t i c a l Environmentalist: M e a s u r i n g t h e Real S t a t e of the World, Cambridge: Cambridge University Press.

6. Ibid., 318.

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