Vol 21 No 1
Autumn 2015
Government moves to outlaw peaceful protest
Patrick Pearlman, EDOWA Principal Solicitor; Jacqueline Trotter and Christopher Bailey, EDOWA volunteers
The WA government has introduced legislation that would broadly criminalise peaceful protest activities in
the State and make persons prosecuted under the new laws subject to lengthy prison terms, steep fines and
potentially massive financial liability.
On 25 February 2015, Attorney-General Michael
Mischin introduced the Criminal Code Amendment
(Prevention of Lawful Activity) Bill 2015 in the Upper
House. The Bill adds two new offences to WA’s Criminal
Code: s68AA(2), which makes it an offence to “physically
prevent” any “lawful activity”, and s68AB(2) which
makes it an offence to “make, adapt or possess” any
“thing” for the purpose of using or enabling the thing to
prevent lawful activity or trespass on private property.
EDOWA and others have pointed out that there are
very significant problems with the new offences.
Section 68AA(2) is the heart of the first new offence,
and provides that: “A person must not, with the intention
of preventing a lawful activity that is being, or is about
to be, carried out by another person, physically prevent
that activity”. Section 68AB(2) is the heart of the second
proposed offence, and provides that: “A person must not Save Mowen Forest protesters. – Twitter/Conservation Council of WA
make, adapt or knowingly possess a thing for the purpose
such as arm- and thumb-locks, whereby protesters make
of using it, or enabling it to be used in the commission
it difficult to access a site or to remove them from the
of” either an offence under s68AA or an offence under
site. However, the new offences are hardly so narrow.
s70A (ie, criminal trespass).
The loose terminology in s68AA, particularly in regards
Overly broad, loosely drafted language and
to the “physical” “prevention” of “lawful activity” (both
undefined terms
terms are undefined) goes far beyond lock activism and
Among the significant concerns about the proposed
could affect a much broader range of protest activities,
legislation is the very broadly-drafted wording of both
including sit-ins, farmers “locking their gates” to fracking,
offence provisions, and the fact that virtually all the terms “moving” roadblocks, even rallies and marches that simply
used are left undefined. The government claims that the impede or hinder movement or entry on private or public
Bill targets “lock activism” – that is, the use of devices
land.
contents
WA govt moves to outlaw peaceful protest ............. 1
Cwth govt still keen to cut EDO funding ................... 4
EDOWA team shrinks ...............................................
5
Community engagement continues ......................... 6
Challenge to Rottnest mgt plan ............................... 7
York keeps fighting landfill plan............................. 8
Iron mines get new lease on life ............................... 9
EPA publishes fracking guidelines.......................... 9
Similarly, s68AB is very loosely drafted and overbroad,
making it a crime to “knowingly” “make”, “adapt” or
“possess” a “thing” for the purpose of “using it” or
“enabling it to be used” to physically prevent lawful
activity or unlawfully enter private property (that is,
trespass). Since “thing” is one of the broadest words in
the English language, the range of incriminating “things”
a person could own or use is incredibly broad. For example,
a car could be a “thing” as it could transport potential
protesters; protest signs could be a “thing” used to commit
an offence if the protest “prevents” lawful activity; a
“camera” used to photograph pollution spilling from a
pipe on a mine site or to capture images of police use of
unreasonable force, likewise could be a “thing” depending
on where or how it is used.
>> next page
Stiff penalties
The new offences proposed by the government carry
with them very stiff penalties and terms of imprisonment
– which is particularly troubling given the vagueness of
the offences’ language. Persons convicted under s68AA
could be sentenced to up to two years in prison and fined
up to $24,000 for an “aggravated” offence – that is,
physically preventing lawful acitivity that causes, or risks
injury to another, including another protester. Thus if the
police – or a developer’s agents – were to assault and
beat a protester, all the protesters at the site where “lawful
activity” is physically prevented could be guilty of
“aggravated” violations under s68AA(2). Otherwise, nonaggravated violations of s68AA and violations of s68AB(2)
subject persons to one year in prison and a fine of up to
$12,000 if convicted.
Potentially huge financial liability
Another very troubling feature of the new offences
proposed by the government is the fact that persons
convicted under s68AA could be held liable for some or
all of the “reasonable expenses” “of or incidental to”
removing a physical barrier to lawful activity created or
maintained by the person. These costs may be recovered
not only by law enforcement officials, but any government
officials and even private persons or corporations whose
lawful activity is prevented by the offence, and costs
recoverable could include developers’ lost profits or
economic loss occurring from delays caused by protests.
Given the large-scale nature of development proposals
that attract significant opposition and protest – for example,
the proposed LNG hub at James Price Point; or last year’s
controversial baited drum line program for sharks; or
logging in Crown reserves and old-growth forests – the
financial consequences of conviction could easily bankrupt
the average citizen.
Meanwhile s68AB carries its own, onerous financial
liability. Persons convicted under s68AB are subject to
a court order that any “thing” “in respect of which” the
offence was committed be forfeited or destroyed. This
could be the citizen’s private automobile, a trucker’s truck
or a farmer’s fencing, vehicles, livestock – whatever thing
is used to block or impede access to the property.
Reversal of the presumption of innocence
Perhaps the most odious aspect of both offences that
the government wishes to add to the Criminal Code is
the reversal of the presumption of innocence. This
presumption has been the foundation of the AngloAustralian criminal justice system for hundreds of years,
going back to Magna Carta or even to the Old Testament.
For example, s68AA(3) presumes that defendants
intended to prevent lawful activity “in circumstances”
that provide “reasonable grounds for suspecting” the
person had such intent, unless a defendant is able to prove
otherwise.
Likewise, s68AB(3) provides that defendants are
presumed to have knowingly made, adapted or possessed
a thing with the purpose of using it to prevent lawful
activity or commit a criminal trespass where
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A Southwest WA forest protester makes his point in an elevated bathtub.
– Jess Beckerling
“circumstances give rise to a reasonable suspicion” that
the defendant had such a purpose, unless the defendant
is able to prove otherwise.
The phrases “reasonable grounds for suspecting” or
“giving rise to a reasonable suspicion” are so vague as to
be virtually meaningless. What grounds are “reasonable”?
In whose mind does the suspicion lie: the arresting office?A
government official? A developer? Suffice to say that
being at the scene of a protest will probably be enough
to attach criminal liability.
In any event, proving the negative is notoriously difficult.
Moreover, the Bill does not define the standard of proof
that a defendant must meet in order to overcome the
presumption imposed by the proposed laws.
Current WA laws appear adequate
EDOWA and other groups believe that current WA
criminal laws applicable to protests are sufficient to deal
with “lock activism” decried by the Government. At
most, minor amendments to the current Criminal Code
would be sufficient to deal with such tactics - not the
open-ended provisions proposed in the Bill.
For example, WA police are currently able to charge
for criminal trespass if a person is on private property
without the owner/occupier's consent and, if convicted,
a person is subject to 12 months' imprisonment and a
$12,000 fine. Police may issue a “move on” notice to
protesters if it is reasonably suspected that they are
preventing or hindering a lawful activity by another person
- requiring protesters to leave a particular public place or
public transport for up to 24 hours. Non-compliance with
a move on order is an offence punishable by 12 months'
imprisonment and a $12,000 fine.
It is worth noting that terms such as “lock activism”,
“thumb locks”, “arm locks”, etc are nowhere to be found
in the proposed offences. If the Bill were truly intended
to be narrowly targeted, it seems odd that these terms are
absent and instead broad, undefined terms are used
throughout the proposed offences.
edonews Autumn 2015
NSW Lock-the-Gate activists.
Bill may violate Commonwealth Constitution
and international law
Opponents of the Bill are concerned that the offences
violate the right of freedom of political communication
inferred by the High Court from s7 and s24 of the
Commonwealth Constitution. While the right is not
absolute, it is designed to ensure that the Australian public
is able to freely discuss, exchange and publicise matters
of public interest, particularly where those matters might
inform the electoral process. The Bill's provisions appear
to “effectively burden freedom of communication about
government or political matters,” the first limb of the
High Court's test whether freedom of speech has been
infringed. If the right is infringed, the law may be upheld
only if the legislation serves a “legitimate end” whether
the legislation is “reasonably appropriate and adapted”
to serve that end.
In addition to potentially breaching the implied
constitutional right of freedom of political communication,
the Bill's provisions may breach Australia's obligations
under the International Covenant on Civil and Political
Rights (ICCPR) including:
• Article 14 of the ICCPR, which guarantees a fair
hearing and provides that “[e]veryone charged with
a criminal offence shall have the right to be presumed
innocent until proved guilty according to law” (similar
to article 11 of the Universal Declaration of Human
Rights);
• Article 19 of the ICCPR, which guarantees the right
to freedom of expression; and
• Article 21 of the ICCPR, which guarantees the right
to peaceful assembly.
Widespread opposition
The Bill has provoked widespread opposition from a
range of organisations who see it as an broadside attack
edonews Autumn 2015
Jen Lewis
on citizens’ civil rights to free speech, freedom of assembly
and expression, and due process. Not surprisingly,
conservationists and environmental groups have voiced
opposition. However, opposition has also come from
church groups and religious organisations, farmers, human
and animal rights activists, unions, indigenous
communities, and students. In other words, the Bill is a
“perfect storm” that has brought together widely-differing
groups and outlooks, united in their support for political
and civil liberties.
On 21 April 2015, a rally at Parliament House for the
purpose of presenting a petition signed by nearly 16,000
citizens drew a respectable crowd. At the same time, more
than 60 organisations – including EDOWA – have signed
a statement expressing their opposition to and concern
about the Bill.
The Bill has also sharply divided WA’s political parties.
While both the Liberal and Nationals leadership have
expressed support, Labor and the Greens have vowed to
repeal it if it becomes law and they are elected in 2017.
Where the Bill goes from here, and what
citizens can do about it
At present the Bill has not yet been enacted into law.
Debate in the Legislative Council is under way but the
Bill has yet to be introduced into the lower chamber of
Parliament, the Legislative Assembly. There is a real
possibility that the Bill will pass both Houses unless
substantial public pressure is brought to bear on the
government, and more particularly the Nationals – many
of whom represent the farmers at risk under this legislation
if they try to stop fracking on their land.
EDOWA believes every citizen who cherishes his/her
civil rights and freedoms as a member of a democratic,
pluralistic society ought to be very concerned about the
Bill's passage and implementation, and citizens can make
their voices heard. EDOWA has prepared
>> page 9
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Commonwealth continues campaign to
discontinue EDO funding
Patrick Pearlman, Principal Solicitor
On 26 March 2015, Commonwealth Attorney-General
Senator George Brandis issued a joint press release (with
Michaela Cash, Minister Assisting the Prime Minister for
Women), announcing the restoration of $25.5 million in
funding, over two years (to 30 June 2017), for Legal Aid
Commissions, Community Legal Centres and Indigenous
legal service providers. The LNP government originally
announced it would cut such funding – originally
committed by ALP Attorney-General Mark Dreyfus – in
July 2013. The cuts provoked an outcry and threw the
public interest legal sector into considerable turmoil, as
they scrambled to find alternative sources of revenue.
Many offices saw invaluable staff head for the exits.
While the restoration of funding was welcome news to
Legal Aid, CLCs and Indigenous legal services, EDOWA
and other EDOs around Australia, which had also seen
their Dreyfus funding – indeed all federal funding –
terminated in December 2013, were expressly excluded
from the government’s decision in a joint press release
on 26 March 2015:
[T]here will be no reduction in Commonwealth funding
to Legal Aid Commissions, Community Legal Centres
(except Environmental Defenders Offices) and
Indigenous legal assistance for the next two years.
With respect to EDOs’ exclusion, Sen Brandis said “I
made a decision that all of the money that the
Commonwealth puts into the legal assistance sector should
go to frontline services; should go to case work rather
than causes.” (www.abc.net.au/news/2015-0326/government-reverses-community-and-indigenouslegal-aid-cuts/6350550).
Sen Brandis’ point of distinction is false. The delivery
of frontline legal services for disadvantaged Australians
is precisely what EDOs provide – “clients, not causes”
is very much the approach adopted by EDOs. Since the
savage cuts in funding were announced in December
2013, EDOs have continued to provide information, advice
and – certainly in EDOWA’s case – representation to a
wide range of individuals and community groups seeking
to protect themselves against environmental impacts of
developer actions and government decisions. EDOWA,
for example, has assisted or represented:
• Indigenous individuals seeking to protect traditional
lands and sites from coal mining near the Fitzroy
River, and uranium exploration near Lake Moore;
• Sea Shepherd and other conservationists challenging
the WA government's controversial baited drum line
program targeting protected species of sharks;
• assisting local landowners in York Shire, concerned
about the potential environmental and other impacts
associated with a massive municipal waste landfill
proposed in their area;
• representing conservationists opposed to applications
to mine iron in the ecologically unique and sensitive
banded iron formations of the Helena and Aurora
Range;
4
Attorney-General George Brandis.
Lucas Coch/AAP
• local farmers and landowners seeking to protect their
land and water resources from hydraulic fracturing to
develop unconventional natural gas deposits in their
communities; and
• the Rottnest Society in seeking access to records of
the Rottnest Island Authority regarding the Authority’s
decision-making in seeking to open the island up to
tourism, via the Freedom of Information Act 1992
(WA).
These clients often cannot get specialised legal advice
and representation on environmental law issues elsewhere.
In many instances, EDOs are the only legal service
providers to which such citizens can turn for help in
understanding their rights and the options available to
them to protect their health, prosperity and the
environment.
Each EDO applies rigorous guidelines to ensure that
work undertaken is in the public interest, has sufficient
merit, and is directed towards the protection of the
environment. EDOWA’s work assists in providing
disadvantaged Western Australians with access to justice
(and government decision-making and policy), improving
the efficiency with which proceedings are conducted, and
discouraging the pursuit of legal actions that have limited
prospects of success.
The government's December 2013 decision to defund
EDOs was made without the advantage of the Productivity
Commission's September 2014 report into Access to
Justice Arrangements. Speaking directly to the
government’s defunding of EDOs, the Commission
expressly recognised (at page 713 of its report) that:
“[T]here are strong grounds for the legal assistance
sector to receive funding to undertake strategic
advocacy, law reform and public interest litigation
including in relation to environmental matters.”
While Mr Brandis and the LNP government in Canberra
may not have had the benefit of the Productivity
Commission's report in December 2013, they clearly had
the report when they decided last month to exclude EDOs
from the restoration of funding decision. Yet no mention
of the Productivity Commission's report or
recommendation to restore EDO funding was made by
Sen Brandis.
edonews Autumn 2015
EDOs strongly support the decision to reverse the
funding cuts to other community legal services, but there
is no basis to distinguish the important work they undertake
from the work undertaken by other community legal
service providers. The EDOs sent a letter to Sen Brandis
on 2 April 2015, inviting him to reconsider his decision
and to restore core funding to EDOs. A copy of the letter
is on the EDOWA website. The letter also questions Sen
Brandis’ decision to continue restricting the use of federal
funding for “advocacy activities” such as law reform and
policy submissions. Again, the EDOs noted that the
Productivity Commission expressly recognised the value
of strategic advocacy and the invaluable contribution the
community legal sector makes to ensuring that laws are
fair and just, consistently applied and rigorously enforced.
Sen Brandis was urged to reconsider the restrictions on
advocacy on policy and law reform as well.
We’re still waiting for Sen Brandis’ reply. Frankly,
we’re not holding our breath.
Inquiry into environmental groups’ charitable
purposes
The Commonwealth’s resistance to funding EDOs is
bad enough, with several offices around the country likely
forced to suspend operations by the end of June 2015,
but there appears to be worse in store.
As mentioned in EDOnews last year (Aug 2014 edition,
p6), the LNP national committee voted unanimously, on
a motion by Tasmanian MP Andrew Nickolic, to
recommend removing all EDOs and several other
environment NGOs (eg, Australian Conservation
Foundation, The Wilderness Society, The Bob Brown
Foundation) from the Register of Environmental
Organisations (REO). Inclusion on the REO gives EDOs
and these other organisations charitable status, allowing
donations to them to be tax deductible.
On 31 March 2015 the House of Representatives
announced an inquiry into the “administration,
transparency and effectiveness” of organisations on the
REO. EDOWA and other NGOs on the REO are invited
to submit comments on the terms of reference for the
inquiry by 21 May 2015.
The inquiry may be an innocent exercise of government
oversight and entirely appropriate, but EDOWA and other
environmental organisations, as well as our supporters,
might be forgiven for being sceptical about the inquiry’s
motivation and outcome. Given the current Commonwealth
government stance on EDO funding and the political
platform adopted by the LNP’s national committee, it is
easy to see the inquiry as the first step on the path toward
stripping EDOs and other conservationist groups of their
tax-deductible status, further starving them of funding.
EDOWA will soon be sending members, donors,
supporters and friends a funding appeal. Please consider
supporting our operations generously. If you’re unhappy
with current Commonwealth environmental policies, one
sure-fire way to make that sentiment felt in Canberra is
to fund the organisations the government dislikes and
keep us “in the fight” until better days.
EDOWA’s legal team
shrinks: farewell to
Annaleen Harris
Patrick Pearlman, Principal Solicitor
Staff turnover in the face of financial uncertainty
stemming from withdrawal of Commonwealth funding
– and uncertain WA finances – continues to affect
EDOWA. Sadly, we must announce that outreach solicitor
Annaleen Harris is on the move. Annaleen left us on 9
April 2015 to join the Perth office of Corrs Chambers
Westgarth’s environment law team.
Annaleen started with EDOWA in July 2012 and has
been involved in a number of ongoing matters, including
seeking external review under the Freedom of Information
Act 1992 (WA FOIA) by the WA Office of the Information
Commissioner (OIC), defence against a defamation
complaint in the WA Supreme Court, and representation
in the Mining Warden’s Court in connection with
objections to mining tenement applications. After returning
to us from family leave in August 2014, Annaleen has
been providing ongoing telephone advice and assistance
to members of the general public and, in recent months,
providing ongoing legal support and advice to community
groups based in the area near the Wagerup Alumina
Refinery, and assisting Rottnest Society’s challenge to
the Rottnest Island Authority’s latest Rottnest Island
Management Plan.
We hope you will join us in wishing Annaleen all the
best in private practice, and in thanking her for her
dedication to EDOWA's mission – a dedication that will
continue, as Annaleen plans to join EDOWA’s
management committee.
Solicitor Annaleen Harris.
edonews Autumn 2015
EDOWA
5
Steady pace of community engagement continues
Patrick Pearlman, Principal Solicitor, and Annaleen Harris, Outreach Solicitor
Even while our staffing resources dwindle, EDOWA continues to remain engaged with local communities,
professionals and academics.
Protecting Black cockatoos in southwest WA
On 13 March 2015, Annaleen Harris gave a presentation
at the “Black Cockatoo Friday” workshop at Busselton
WA, which focused on using the federal Environment
Protection and Biodiversity Conservation Act 1999 (EPBC
Act) to protect and preserved iconic Black cockatoo
species in Southwest WA. There was very strong interest
in the event, which was quickly booked out and
“community” sessions having to be moved to a larger
venue at St Mary’s Hall.
The event was organised by the South West Catchments
Council (SWCC) and was designed to give local
governments, natural resources managers, landcare
officers, natural area managers and members of the general
public a greater understanding of the lifecycles and
distribution of Carnaby’s Black cockatoo and Forest black
cockatoo species, current threats the birds face. The
program also sought to provide practical knowledge on
legal and planning obligations for species conservation
and management. Other presenters included keynote
speaker Ron Johnstone, Curator of Ornithology at the
WA Museum, as well as Dr Geoff Barret of the WA
Department of Parks and Wildlife. The event illustrated
the deep commitment and passion communities have in
preserving Southwest WA’s biodiversity, and generated
a wealth of knowledge and expertise to those who are
seeking to preserve Black cockatoos. Annaleen’s
presentation can be accessed on EDOWA website at
www.edowa.org.au, and other presentations, research
papers, links and contacts for various presenters from the
event are available on the SWCC website at
http://swccnrm.org.au/events/black-cockatoo-fridaytechnical-session/.
Professional development seminar
On 26 March 2015 EDOWA held a rare, continuing
professional development seminar for WA lawyers. The
seminar was delivered to lawyers, law students and legal
academics on two topics related to environmental law
Drying Southwest WA.
6
and practice. Perth barrister and EDOWA convenor
Johannes Schoombee delivered a paper entitled “The
Environmental Protection Act 1986 (WA): A Hard Act
to Follow”. Hannes’ presentation critically analysed the
EP Act and its implementation over time, focusing on
four issues in particular:
• the lack of a sophisticated assessment framework,
particularly for complex proposals;
• uncertainty about the consideration of alternatives to
the proposal put forward, including the location of the
proposal and “do nothing” option;
• difficulty in defining the pivotal concept of a
“proposal”, and more particularly, a “strategic
proposal”; and
• use of open-ended conditions to be implemented in
the future.
Patrick Pearlman followed, with a presentation entitled
“Ethical considerations in public interest environmental
litigation.” Patrick’s presentation examined the ethical
and practical considerations for lawyers involved in public
interest litigation – whether acting for plaintiffs or
defendants. The presentation included not only a historical
context for public interest litigation – referencing the
battle for African Americans’ civil rights – but also
strategic considerations for public interest legal teams.
EDOWA part of UWA conference
On 8 April 2015 EDOWA’s Principal Solicitor
participated in a panel discussion as part of UWA’s Water
Resources Law Conference, held at the University of
Western Australia and organised by Professor Alex
Gardner. Patrick was part of the panel for Session 2 of
the conference, entitled “Key Issues and Perspectives for
Water Resources Reform in WA” and provided the
environmental conservation perspective. Among other
things, Patrick noted that WA is approaching critical
shortages in water supplies, with the Perth region going
into deficit by 2020, and the SW region by 2025.
ron_n_beth/Flickr, CC BY-NC
edonews Autumn 2015
Other areas, such as those in the Wheatbelt (Pallinup,
Upper Great Southern and Midlands regions) have been
in deficit for years. Patrick questioned the wisdom of
increasing the term for water licences from ten to 40 years
and the award of perpetual water entitlements, as currently
contemplated by the State, and urged several reforms,
including:
• establishing statutory water allocation plans for all
regions of WA;
• giving affected communities and individuals standing
to challenge allocations to the State Administrative
Tribunal;
• requiring all groundwater extraction – including garden
bores – which account for an estimated 160 gigalitres
of water annually in the Perth region – to be licensed
and metred; and
• establishing water-use charges for all users, primarily
as a means for driving conservation and efficiency.
Information about the program, including access to
presentations and audio recordings of the panel
discussion is available at
www.law.uwa.edu.au/cpd/water-resources-lawconference.
Noise emissions and controls subject of May
presentation
Finally, EDOWA's other solicitor, Ian McLeod, will be
providing a presentation on 4 May 2015 to the Australian
Institute of Architects as part of the AIA's “A guide to
preventing and handling a noisy neighbourhood”
conference. Ian's presentation, entitled “Sensitive Buildings
and Noisy Neighbours – Legal Issues Associated with
Noise Complaint”, will illustrate what happens when
there is a conflict between a noise sensitive building and
a noise producing source, from the complaint process all
the way up to enforcement. Ian will also explore some of
the most common (and interesting) complaints received
by EDOWA and some notable cases heard in the courts
and the SAT over the years.
Challenge to Rottnest
Island management plan
continues
Annaleen Harris, Solicitor
With EDOWA’s assistance, the Rottnest Society
(Society) continues to challenge the Rottnest Island
Authority’s (RIA) 20-year management plan for the island,
currently in proceedings before the Office of Information
Commissioner (OIC).
When the RIA released the draft management plan in
April 2014, the Society lodged submissions expressing
grave concerns that the plan contravened the fundamental
objectives and provisions of the Rottnest Island Authority
Act 1987 (WA) (RIA Act). Among other things, the
Society noted that the management plan failed to direct
its function and purpose to the conservation of the flora
and fauna of the island, and maintenance and protection
of the natural environment. Instead the plan’s primary
edonews Autumn 2015
focus was promoting and expanding tourism even to the
detriment of the Island's Class-A conservation reserve.
The Society also commented on the plan’s scarce level
of detail and failure to provide budget estimates (see
EDOnews, August 2014).
In addition, the Society expressed concerns over lack
of transparency in the RIA’s development of the plan.
The RIA had contracted Taylor Nelson Sofres Australia
Pty Ltd (TNS) to analyse and summarise public
submissions during the statutory consultation period, and
TNS’s analysis was consolidated in a “summary”
document presented to the RIA. Curiously, this
“summary”, as well as any drafts of the management
plan, were withheld from release to the public by the RIA.
This lack of transparency did little to aid already waning
public confidence in the RIA’s decision-making. The
Society sought to ensure that public submissions had been
accurately reflected to the RIA and, with EDOWA’s
assistance lodged a request under the Freedom of
Information Act 1992 (WA) (WA FOIA) with the RIA
on 16 July 2014, seeking all documents relating to the
management plan – particularly any draft or final
“summaries of submissions” considered by the RIA. The
RIA refused access and again withheld this decision after
EDOWA requested internal review by the agency.
Throughout the complaints process the RIA relied
broadly upon the cabinet or executive body exemption
and deliberative process exemption in the WA FOIA,
despite a clear failure to appropriately apply those
exemptions, and reluctance to examine the specifics at
issue. The RIA also expressed concerns that persons
making submissions on the draft management plan would
not want their names or comments publicly released.
Interestingly, the RIA did not undertake any third-party
consultation (per ss32-33 of the WA FOIA) to address
these concerns.
On 6 November 2014, EDOWA lodged a formal
complaint to the OIC seeking external review of the RIA’s
decisions. Shortly thereafter the RIA released several
email communications between the RIA and TNS to the
Society but withheld the summary of submissions and
draft documents.
Following gazettal of the draft management plan on 16
December 2014, and despite a clear lack of legal argument
or evidence supporting its exemption claims, the RIA
maintained its position before the OIC to withhold the
requested documents in their entirety. This was the third
instance in which the RIA failed to support the statutory
exemptions it claimed with any legal argument or evidence.
Notwithstanding such deficiencies, the OIC declined to
make a determination and instead ordered the parties to
participate in a compulsory conciliation conference.
The conciliation conference was held on 5 February
2015, which failed to resolve the parties’ dispute and was
referred back to the Commissioner for determination. The
OIC advised that it would take at least 3-4 more months
to reach a determination – after a decision had already
been delayed some three months.
The long delay the Society has experienced exemplifies
the continued, systemic failure of agencies to apply the
WA FOIA as Parliament intended.
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By its own objects the WA FOIA is a pro-release
law, designed to enable timely public access to agency
records in order to encourage transparency and
accountability in government decision-making. The OIC’s
inability to make timely determinations – and apparent
resort to conciliations as a means to buy more time – is
gravely concerning to EDOWA and its clients, particularly
where, as in this instance, the agency clearly fails to carry
its burden of providing that there are genuine legal grounds
for withholding records.
In this instance, s76(3) of the WA FOIA requires the
OIC to determine the complaint within 30 days after its
receipt, “unless the Commissioner considers it is
impracticable to do so”. The WA FOIA provides no
guidance as to when it may be “impracticable” but
currently the OIC appears to rely upon lack of resources
to indefinitely postpone determinations. The OIC’s use
of “compulsory conciliation conferences” where a
determination could be summarily made on the face of
the parties’ filings confounds the OIC’s position and
Parliament’s objects. The use of conciliations, rather than
issuance of black-letter rulings that could provide useful
precedents means development of the law under the WA
FOIA is being severely stunted.
Interestingly, the TNS report was tabled in Parliament
on 17 February 2015, and a copy of the final report made
publicly available on the WA Parliament website shortly
afterwards. EDOWA received the requested documents
a few days later. However, the released documents
contained three pages of solid redaction, where the RIA
relied upon “personal information” and “business and
commercial information” exemptions. EDOWA has raised
significant questions about the validity of the RIA’s
reliance on these exemptions, and this aspect of the dispute
is still with the OIC.
York residents continue
fight against landfill
proposal
Christopher Bailey, EDOWA volunteer, and Patrick Pearlman,
Principal Solicitor
We continue to represent and assist residents of York
Shire who have opposed SITA Australia’s proposed
Allawuna Farm municipal landfill near Mount Lookout
National Park. The proposed Class II waste facility is
located in an area historically used for cropping and
grazing, and would accept up to 250,000 tonnes of waste
per year as currently proposed. The landfill would have
an expected lifespan of 20 years.
SITA is currently seeking review in the State
Administrative Tribunal (SAT) of the Wheatbelt Joint
Development Assessment Panel’s (JDAP) April 2014
decision, endorsing the local council’s recommendation
rejecting the proposal. EDOWA began representing local
residents seeking to intervene in the SAT proceeding in
May 2014.
The SAT proceeding has been subject to a number of
delays, requested by SITA – most recently in December,
when the company announced it was withdrawing its
8
January 2015 works approval application lodged with the
Department of Environment Regulation (DER) in order
to submit a modified proposal.
In March 2015 SITA submitted its modified
development plan. EDOWA’s clients, as well as other
local residents and the Shire of York, challenged the
modification, arguing that the modifications were so
significant that they amounted to a new proposal. Under
section 29(9) of the State Administrative Tribunal Act
2004 (SAT Act), the SAT cannot deal with a matter that
is “different in essence” from the matter before the original
decision maker. If the intervenors were successful in their
argument, SITA would have been required to go through
the planning application process all over again.
Together with the other intervenors, EDOWA lodged
written submissions to the SAT on 24 March 2015, and
a hearing was held before Senior Member Peter McNab
on 27 March 2015. The focus of the intervenors’
submissions was principally SITA’s proposal to add three
large “borrow pits” outside of the original landfill footprint,
and the modification of a watercourse on the subject site
in a way not included on the original proposal. The borrow
pits, covering an area of roughly 22 hectares, would
provide cover and fill material, and were required as a
result of SITA’s modifications reducing the size of the
original active landfill by approximately 18ha and reducing
slightly the depth of landfill.
On 10 April 2015 the SAT issued its decision, agreeing
with SITA that the modifications could be accommodated
through an amendment to the development plan currently
before the SAT, and did not require a new application to
be lodged. Senior Member McNab stated that, based on
an impressionistic view of the cumulative changes, the
essence or substance of the proposal had not been changed
by virtue of the modifications, even though the inclusion
of the borrow pits would change the landscape and
management regime of the site. In his view these issues
were ultimately for the SAT review of the proposal’s
merits. Mr McNab further concluded that the management
objectives reflected in changes to the watercourse were
not considered “sweeping or substantial”.
However, Member McNab did conclude that, pursuant
to s31 of the SAT Act, the modified plan of development
should be readvertised in order to allow further public
comment regarding the proposed modifications, and
consideration by both the Shire and the JDAP. This process
will proceed parallel to DER’s review of SITA’s new
works approval application, which was lodged on 2 April
2015. The JDAP is expected to have concluded a review
of its original decision by 15 July 2015, and EDOWA
and the other parties will be back in the SAT by early
August.
edonews Autumn 2015
Jacob gives iron mines a new lease on life
Patrick Pearlman, Principal Solicitor
In the previous issue of EDOnews (Dec 2014, p2), we
were pleased to inform readers that the WA Environmental
Protection Authority (EPA) had determined that Polaris
Metals’ proposed iron mines in the banded iron formations
of the Helena and Aurora Range had been assessed as
“environmentally unacceptable”. Polaris Metals
subsequently appealed that decision to the Appeals
Convenor.
Unfortunately, on 22 April 2015 WA Environment
Minister Albert Jacob issued his decision allowing Polaris’
appeal to the extent that he remitted the matter back to
the EPA with instructions that it should reassess the
proposal by way of a Public Environmental Review (PER).
Minister Jacob also expressed concern that there were
‘relatively few proposals where the concept of “landforms”
has been applied in the way it has been in this case.’
Somewhat paradoxically, the Minister then concluded
that, with regard to ‘the use of the Assessment on
Proponent Information (Category B) level of assessment’
– meaning the proposal was deemed unacceptable based
on Polaris’ material - ‘the EPA’s processes were
satisfactory.’
Minister Jacob also issued a similar, separate decision
upholding Sinosteel Midwest’s appeal of the EPA’s
decision recommending against a proposed iron mine in
the banded iron formations of Blue Hills-Mungada Ridge,
to the west of Polaris’ proposal. Both decisions are at
http://portal.appealsconvenor.wa.gov.au/portal/page?_p
ageid=1258,1&_dad=portal&_schema=PORTAL (under
“Recent Decisions”).
Minister Jacob’s decision effectively resuscitates Polaris’
(and Sinosteel’s) mining proposal, at least for the time
being. However, a long process associated with preparation
and publication of a PER, with opportunity for public
submissions – meaning that EPA staff and money will
be tied up in reassessing a proposal which initially couldn’t
get past square one. His decision also means that the
objections to some of Polaris’ mining tenement
applications that EDOWA has been litigating on behalf
of conservation groups in the Mining Warden’s Court
will continue but be put on hold until the conclusion of
the PER process. Finally, Minister Jacob’s decision
probably dooms conservation groups’ efforts to lobby
Mines Minister William Marmion, to summarily refuse
Polaris’ tenement applications and exempt the areas from
future mining under ss19 and 111A of the Mining Act
1978 (WA).
EDOWA supporters and members of the public opposed
to mining in WA’s unique banded iron formations should
monitor our website – and the EPA’s – and take every
opportunity to comment on the environmental scoping
document which the EPA will release initially, as well as
the PER when it follows. We expect to remain heavily
involved in the process going forward.
edonews Autumn 2015
A banded iron formation.
The Wilderness Society
EPA publishes fracking guidelines
Hannah Spivey, EDOWA volunteer
In December 2014 the WA EPA published bulletin No
22: “Hydraulic fracturing for onshore natural gas from
shale and tight rocks”. Hydraulic fracturing, otherwise
known as “fracking”, is a process that pumps fluids and
other materials under high pressure into gas-bearing rock
formations in order to fracture the rock and enable gas to
flow into wells from which it can be extracted.
The EPA bulletin sets out to define the circumstances
in which it will assess fracking proposals, outline its
expectations for environmental impact assessment of
proposed fracking activities, and list the information it
may require from fracking proponents to properly assess
risks and environmental impacts of proposals. The bulletin
also lists potential environmental impacts specific to
proposals involving fracking-related activities, noting
that there are several practices involved in fracking which
have not been regularly assessed by the EPA.
Finally, the bulletin outlines the relevant regulatory
framework for the regulation and development of gas and
petroleum activities, and offers general guidance to
proponents for discussing their proposal with the EPA
and liasing with other responsible state and local
government agencies. More information can be accessed
on the EPA website www.epa.gov.au
Govt moves to outlaw protest
– from page 3
a 13-page paper analysing the Bill and its flaws, and
providing suggestions for citizens wish to make their
voices heard, available at www.edowa.org.au. Elected
representatives’ contact information can be found at
www.parliament.wa.gov.au/WebCMS/WebCMS.nsf/in
dex and citizens are encouraged to sign the online petition,
donate money or time to organisations who oppose the
Bill (listed here: http://protectpeacefulprotest.com/). In
addition, EDOWA is seeking to organise community
meetings around WA regarding the Bill. If you would
like to EDOWA to speak to your community, please
contact us on (08) 9221 3030 or email
[email protected]. Our resources – and time for action
– are limited, so please act promptly.
9
Core funding for EDOWA (Inc) is provided by the WA State Attorney General’s department.
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