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A balancing act

By Andrew Macintosh - posted Thursday, 27 September 2007

For years, the proposal to establish a pulp mill in Tasmania’s Tamar Valley was ignored by mainlanders. Yet in the space of a few months, it has become a major federal election issue, primarily because of deficiencies in state and federal assessment procedures. Unfortunately the problems with the assessment processes that have emerged in this case are far from extraordinary; increasingly they are becoming the norm.

Since the early to mid 1970s, there has been a gradual increase in environmental regulation. In some cases, particularly the regulation of pollutants that threaten human health, the changes have produced positive results. However, environmental assessment processes have failed to live up to expectations on many occasions.

The failures have generally been caused by an inability on behalf of decision-makers to balance the often competing needs of development and conservation. The interests of business are viewed by many as synonymous with those of society, meaning environmental objectives have tended to be seen as subordinate to those of development.


In recent times, business interests have not only been able to exert a disproportional influence on the outcomes of approval processes, but they have also dictated the procedures that have been followed to assess proposals. One example of this is special approval legislation, where a one-off statutory process is established for a particular development in preference to the normal process.

This is what occurred in the case of the pulp mill. The normal process run by the Tasmanian Resource Planning and Development Commission was set aside after Gunns Ltd complained it was taking too long. Under the special process, the assessment was carried out by private consultants and approval was granted by the Tasmanian Parliament.

Understandably this special legislation was viewed by many as a process with a predetermined outcome. This has sparked a community backlash. But there is a large list of cases where special legislation has been used, both in Tasmania and elsewhere, to avoid the “inconveniences” associated with the normal procedures.

ANU academic Dr James Prest, who is currently researching this issue, estimates there are about 30 pieces of special approval legislation in New South Wales alone. And the ACT is not immune to this trick: special legislation was used to override the normal procedures to facilitate the construction of the Gungahlin Drive Extension.

The Howard Government has minimised the need to rely on special approval legislation by creating a federal legislative regime (called the Environment Protection and Biodiversity Conservation Act (EPBC Act)) that has an extensive list of exemptions and grants the environment minister broad discretionary powers to control the assessment and approval process. To date, the only case where special legislation has been used to circumvent EPBC Act procedures involved the siting of a national repository for nuclear waste in 2005.

The more common features of the federal regime have been the reluctance to enforce the legislative requirements, the use of cursory assessment processes, a steadfast refusal to reject proposals and an unwillingness to impose appropriate conditions. The handling of the Tamar Valley pulp mill by the Federal Environment Minister, Malcolm Turnbull, reflects these tendencies.


Despite the environmental issues and extent of community concern associated with the proposal, the Minister assessed the mill on the basis of what is known as “preliminary documentation”. Until very recently, this was the least onerous form of assessment and it involves a relatively cursory evaluation of materials submitted by the proponent of the development.

Notwithstanding the fact that the EPBC Act is supposed to protect matters of national (rather than state, regional or local) environmental significance, preliminary documentation has been the most popular form of assessment under the regime. Statistics published by the government indicate that of the assessments completed, almost 70 per cent have been by way of preliminary documentation.

After the cursory assessment of the mill had been completed, the Minister came under intense political pressure about the project. Responding to this pressure, he delayed making a decision, called for public comment and asked the chief scientist to provide additional advice.

The public may have had greater confidence in the process if the assessment had been carried out by way of an environmental impact statement or public inquiry. The use of one of these more comprehensive and transparent procedures would also have avoided the need for further public input and comment from the chief scientist.

There are rumours the Minister will now block the mill to prevent a backlash in his own Sydney seat of Wentworth. He may also try to use the caretaker convention to tie the ALP to the decision. Irrespective of the outcome, the case has been an illustration of how not to conduct a robust and transparent assessment process.

Assessment procedures are supposed to ensure there is a real and proper balancing of competing interests and values. The Tamar Valley pulp mill is another reminder that when these procedures are compromised, the outcomes are invariably poor decisions made in a way that generates uncertainty and community discontent.

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About the Author

Andrew Macintosh is Deputy Director of The Australia Institute, a Canberra-based think tank, and author of Drug Law Reform: Beyond Prohibition.

Other articles by this Author

All articles by Andrew Macintosh

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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