Legal Issues arising from the Pulp Mill Permit issued under the Pulp Mill Assessment Act 2007 (Tasmania)

This article examines legal issues arising from the pulp mill permit for the Gunns Pulp Mill issued under the Pulp Mill Assessment Act 2007 (Tas) ('PMAA'). Firstly, the article gives a short account of the origins of the PMAA and the events leading to its enactment. The article then considers the basic scheme of the Act and the legal nature of the permit which it authorises, before examining the system for regulating the pulp mill established under the PMAA. That system depends upon imposing conditions on the construction and operation of the mill in a permit known as the Pulp Mill Permit and imposing a duty on nominated agencies to enforce those conditions. The system of regulation contemplated by the Act is surprisingly stringent, allowing for zero tolerance ofbreaches, in that if the mill breaches a condition, the permit is suspended, all its operations become illegal and the agency nominated as responsible for enforcing the condition has no option but to enforce the condition.

The article considers the relationship between the provisions for enforcing permit conditions and other possible regulatory systems, such as those which regulate and control pollution. It also examines the ways in which permit conditions may be altered, considering whether an Act of Parliament may be needed to amend the permit.

Probably because the government saw a zero tolerance enforcement regime as being too rigid and too strict, an attempt was made in the conditions to water it down. Permit conditions 8 and 9 sought to give agencies nominated to enforce conditions some discretion not to enforce, by defining a breach of condition as only arising if the nominated agency was reasonably satisfied that there was not substantial performance of that condition and had notified Gunns accordingly. The article examines the validity of these conditions. In my opinion, these conditions are invalid as a backdoor attempt to amend the legislation. However, the article concludes that they may be severed from the rest of the Permit, so that the Permit remains valid but must be enforced strictly as required by the Act.