This is going to be almost completely two pastes from other sites as I think they explain it better than I can. I find it bizarre that someone can win a legal case on solid legal grounds, then see it undermined by legislative change and then have to pay the costs for it!
From yesterday’s Crikey:
The possible bankruptcy of Greens Senator Bob Brown as a consequence of Forestry Tasmania’s demand for legal fees would be a victory from beyond the political grave for Paul Lennon and John Howard and a big win for the Tasmanian Government’s efforts to stymie scrutiny of its forestry practices.
Brown needs to find over $239,000 by 29 June or face bankruptcy proceedings initiated by Forestry Tasmania’s lawyers Page Seager. Under the Constitution, Brown would be forced to give up his Senate seat if declared bankrupt, leaving the choice of a replacement in the hands of the Tasmanian Government.
The legal saga surrounding logging in the Wielangta Forest is lengthy and complicated (the Senate Environment committee has an excellent summary) but revolves around a simple fact: John Howard and Paul Lennon changed the rules after Brown won in court to nullify his Federal Court win over Forestry Tasmania.
Brown took Federal Court action in 2005 to prevent logging in the Wielangta Forest north-east of Hobart. Brown’s case centred on the interaction of the Environment Protection and Biodiversity Conservation Act 1999 and Regional Forestry Agreements which allowed states and logging companies to avoid the impact of the EPBC if the Agreement provided for protection for significant species.
Brown argued that logging in the Wielangta Forest was not in accordance with the protection measures described in the relevant RFA and therefore the protections of the EPBC – in essence, that logging needed Commonwealth approval – applied. In December 2006, Federal Court Justice Marshall awarded a comprehensive victory to Brown, declaring that there was evidence the logging was harming three major protected species (the Tasmanian wedge-tailed eagle, the broad-toothed stag beetle and the swift parrot) and that the relevant protective measures, based around a reserve system, did not comply with the RFA clause.
Forestry Tasmania immediately appealed and nearly a year later, three Federal Court justices rules that the mere existence of a reserve system was sufficient to meet the requirements of the RFA, regardless of whether the reserve system actually protected any species or not. Marshall’s findings that the logging had damaged the three protected species still stood (and stand).
Brown appealed to the High Court, but by then John Howard and Paul Lennon had conspired to remove the basis for the legal action. On 23 February 2007, Howard and Lennon had agreed to amend the relevant RFA so that the clause.
The State agrees to protect the Priority Species listed in Attachment 2 (Part A) through the CAR Reserve System or by applying relevant management prescriptions was removed and replaced with a simple statement that the reserve system protected threatened species. In effect, Lennon and Howard were agreeing that black was white. There was no Parliamentary scrutiny in either the Commonwealth or Tasmania of the amendment.
The High Court refused to grant Brown special leave to appeal because the new clause meant he had little chance of success. It refused to award costs against him, but Brown was still left the bill from the Federal Court appeal hearing.
Forestry Tasmania is owned by the Tasmanian Government and has close links with logging company Gunns. Gunns unsuccessfully tried to litigate Brown and other environmentalists out of the forestry debate with a punitive lawsuit that has progressively collapsed, although the company is still pursuing seven individuals.
The Forestry Tasmania action, however, is a different matter. This is the Tasmania Government pursuing Brown for daring to beat it in court to such an extent that it changed the rules to ensure victory.
And from Dr Brown himself:
I and Margaret Blakers and all who have taken and persisted with the Wielangta Forest case these last four years, are extremely thankful to all of you who have donated or otherwise contributed to make this landmark case, right to the High Court, possible.
I have now received a demand from Forestry Tasmania for $239,368.53 court costs, as awarded by the Federal Court, to be paid by 29th June (see attached). Be assured we will borrow or raise the money to pay this bill (the reference to bankruptcy in the letter is because this would forfeit my seat in the Senate).
This is the last appeal for Wielangta and, as the 29th June deadline mandates, is quite urgent. If you can contribute, I thank you once again, for your generosity to Wielangta and Australia’s other threatened species habitats.
The link for donations is here. For me this is not about politics but about ensuring honesty of process. If companies are allowed to behave this way and get what they want, then God help us all.