Hi Anne,

Tasmanian Times has just published an excellent commentary on the legal
background to Bob's case by Dr Kevin Bonham
<http://tasmaniantimes.com/index.php?/weblog/comments/browns-seat-at-ris\
k-over-legal-bill/>

Notes: FT = Forestry Tasmania; RFA = Regional Forest Agreement; EPBC
= Environment Protection and Biodiversity Conservation Act, which you
can read about here. <http://www.environment.gov.au/epbc/index.html>
"Wayward" refers to poster John Hayward and #3 etc refers to the posted
comment number.


Here's Kevin's comment as published:


1.
Wayward is wayward again - #3 is wrong or at least misleading. pilko in
#16 makes the same mistake as does Garry Stannus in #22 and I doubt
those three are the only ones who have it wrong. It's a complex
matter but it is possible to wade through all the cases and see what
actually happened.

The overturning of the original case on appeal was nothing to do with
the amendment to the law made following the original case.

The overturning was with reference to the law as it stood when the
original case was heard.

The appeal court found that RFA forestry operations were not subject to
the EPBC Act and never had been. So let's not pretend that Marshall
J's original finding reflected the law as it stood at that time.
That finding is overturned.

The finding that does reflect the subsequent change in the law is the
High Court's denial of leave to appeal the overturning. So what has
happened is:

* Marshall found that logging in the areas violated the EPBC act.
* His finding was overturned on appeal.
* The overturning now cannot be appealed because the High Court has
ruled that such an appeal is not worth hearing given that the laws have
been changed, so that even if the original finding was reinstated, it
would have no new effect.

Notably when Brown sought leave to appeal the overturning he was not
required to pay FT's costs even though his application failed.

Amy (#10) - can you produce any evidence that FT claims buttongrass to
be locked-up forest? Seems like you might be having trouble telling
rainforest from buttongrass from that comment.

Brian Walters SC (#11) points out that "none of the findings of fact
were disagreed with by the higher courts". This is true but the
appeal judges found that a great many of the findings of fact made by
Marshall J were irrelevant to the determination of the case and
furthermore criticised him for determining those issues at all.
Likewise those findings of fact were not relevant to the reasons for
upholding FT's appeal, or the reasons for declining Brown the right
to appeal the appeal result, so the lack of overturning of a great many
of Marshall J's findings is irrelevant at best.

Another question is the issue of payment for cases brought in the
supposed public interest as opposed to for profit. I do not agree that
discouraging profiteering is the only reason to apply costs. Gilly
(#24) is correct - protecting respondents from having to pay fees for
unsuccessful cases brought against them in the supposed public interest
is another important factor. Furthermore allowing such cases to be
brought without costs being awarded against the unsuccessful party just
encourages more of what I have half-jokingly referred to on another
thread as SLAGPs (Strategic Lawsuits Against Government Participation) -
court cases brought to cost the government money and obstruct and
intimidate government processes. Or change the G to a C (for Corporate)
for the same result.

Peter G (#12) - no, as the Senate system does not employ recounts for
casual vacancies; the Tasmanian Parliament would appoint a Green to
serve as Brown's replacement.
Posted by Dr Kevin Bonham <mailto:k_bonham@...> on
09/06/09 at 10:59 PM




--- In ClimateChangeAction@..., "Anne"
<cyberactivist@...> wrote:
>
> Thanks for this message Peter, it fills in the gaps very well...
> I have put together a comment using this article with further
background notes and posted it as a comment to the website front page
appeal. My comment is here:
> http://globalclimatechangeaction.org/comment/reply/319
> I will be further sharing this comment to Facebook and as a link in
Twitter.
> I have very little to give, but will be giving everything that i can.
>
> Anne
>
> --- In ClimateChangeAction@..., "Peter Bright"
hobart_elf@ wrote:
> >
> > Here's an extract from today's Crikey at Tasmanian Times about Bob's
> > case:
> >
> > Tasmanian Times
> >
<http://tasmaniantimes.com/index.php?/weblog/comments/browns-seat-at-ris\
\
> > k-over-legal-bill/>
> >
> >
> > 1.
> > From Crikey today:
> > By Bernard Keane
> > Howard's dead hand behind the Bob Brown bankruptcy scare
> > The possible bankruptcy of Greens Senator Bob Brown as a consequence
> > ofForestry Tasmania's demand for legal fees would be a victory
> > frombeyond the political grave for Paul Lennon and John Howard and a
> > bigwin for the Tasmanian Government's efforts to stymie scrutiny of
> > itsforestry practices.
> >
> > 2.
> > Brown needs to find over $239,000 by 29 June or face
> > bankruptcyproceedings initiated by Forestry Tasmania's lawyers Page
> > Seager. Underthe Constitution, Brown would be forced to give up his
> > Senate seat ifdeclared bankrupt, leaving the choice of a replacement
in
> > the hands ofthe Tasmanian Government.
> >
> > The legal saga surrounding logging in the Wielangta Forest islengthy
and
> > complicated (the Senate Environment committee has anexcellent
summary)
> > but revolves around a simple fact: John Howard andPaul Lennon
changed
> > the rules after Brown won in court to nullify hisFederal Court win
over
> > Forestry Tasmania.
> >
> > Brown took Federal Court action in 2005 to prevent logging in
> > theWielangta Forest north-east of Hobart. Brown's case centred on
> > theinteraction of the Environment Protection and Biodiversity
> > ConservationAct 1999 and Regional Forestry Agreements which allowed
> > states andlogging companies to avoid the impact of the EPBC if the
> > Agreementprovided for protection for significant species.
> >
> > Brown argued that logging in the Wielangta Forest was not
inaccordance
> > with the protection measures described in the relevant RFAand
therefore
> > the protections of the EPBC  — in essence, that
> > loggingneeded Commonwealth approval  — applied. In
> > December 2006, FederalCourt Justice Marshall awarded a comprehensive
> > victory to Brown,declaring that there was evidence the logging was
> > harming three majorprotected species (the Tasmanian wedge-tailed
eagle,
> > the broad-toothedstag beetle and the swift parrot) and that the
relevant
> > protectivemeasures, based around a reserve system, did not comply
with
> > the RFAclause.
> >
> > Forestry Tasmania immediately appealed and nearly a year later,three
> > Federal Court justices rules that the mere existence of a
reservesystem
> > was sufficient to meet the requirements of the RFA, regardlessof
whether
> > the reserve system actually protected any species or not.Marshall's
> > findings that the logging had damaged the three protectedspecies
still
> > stood (and stand).
> >
> > Brown appealed to the High Court, but by then John Howard and
PaulLennon
> > had conspired to remove the basis for the legal action. On
23February
> > 2007, Howard and Lennon had agreed to amend the relevant RFAso that
the
> > clause.
> >
> > The State agrees to protect the Priority Species listed inAttachment
2
> > (Part A) through the CAR Reserve System or by applyingrelevant
> > management prescriptions was removed and replaced with asimple
statement
> > that the reserve system protected threatened species.In effect,
Lennon
> > and Howard were agreeing that black was white. Therewas no
Parliamentary
> > scrutiny in either the Commonwealth or Tasmania ofthe amendment.
> >
> > The High Court refused to grant Brown special leave to appealbecause
the
> > new clause meant he had little chance of success. Itrefused to award
> > costs against him, but Brown was still left the billfrom the Federal
> > Court appeal hearing.
> >
> > Forestry Tasmania is owned by the Tasmanian Government and has
> > closelinks with logging company Gunns. Gunns unsuccessfully tried
> > tolitigate Brown and other environmentalists out of the forestry
> > debatewith a punitive lawsuit that has progressively collapsed,
although
> > thecompany is still pursuing seven individuals.
> >
> > The Forestry Tasmania action, however, is a different matter. Thisis
the
> > Tasmania Government pursuing Brown for daring to beat it incourt to
such
> > an extent that it changed the rules to ensure victory.
> >
> > Brown has launched an appeal for donations.
> > Posted by kate <mailto:laughable7250@ on 09/06/09 at
> > 03:50 PM
> >
> >
> >
> >
> > [Non-text portions of this message have been removed]
> >
>



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