A recent feed that scrolled across your scribe’s screen was a reference to The Wilderness Society writing to the ACCC:
“… concerned that, despite stating that it [Bunnings] ‘excludes timber sources where the material was illegally harvested or traded’, illegally logged timber may have entered Bunnings’ supply chain via Forestry Corporation of NSW, a state-owned corporation that a judge in 2024 described as having ‘a significant history of unlawfully carrying out forestry operations’.”
The jaded eye was jolted, and the mists of time parted, allowing a view over decades to the standard of behaviour when Bunnings was in bed with State Governments and their agencies, particularly the agencies set up to monitor, regulate and protect native forests.
The judge who had a go at the State-owned Forestry Corporation in 2024 was Rachel Pepper, who, in Environment Protection Authority v Forestry Corporation of New South Wales [2024] NSWLEC 78, at [134] listed previous convictions (lettered (a) to g)) against the delinquent Corp from 2004 to 2022 for “environmental offences”.
At [137] HH referred to the Corporation’s “significant history of unlawfully carrying out forestry operations”. Just the sort of pals for Bunnings to be hanging out with.
It took your scribe back to the halcyon days of forest felling in the Golden West in the 1990s, when Bunnings was closely sequestered with the Department of (keep) CALM (and carry on), Conservation and Land Management, under the stewardship of the wiliest of bureaucratic crocodiles, Dr Syd Shea, the Executive Director of CALM.
Syd was charged with the protection and management of the Crown’s forests, and also the sale of timber products sourced to such forests. No conflict here.
He had prime statutory materials to work with, as he administered the application of (among other legislation) the Conservation and Land Management Act 1984 (WA) and the Wildlife Conservation Act 1950 (WA).
The former Act was the executive director of CALM’s hand-crafted baby, and he ensured that on taking office in 1984, he also took administrative control of the older Act.
The CLM Act contained provisions for Ministerial Conditions to cover timber extraction, amongst which conditions were a “Precautionary Approach”.
The WC Act provided that the Crown (obviously including CALM) was bound by provisions dealing with rare flora.
The Greenbotherers had two goes in the WA Full Court regarding CALM’s approach to allowing logging companies free rein, including in a major role, a Bunnings subsidiary, WA Chip and Pulp Co Pty Ltd – see South West Forests Defence Foundation (Inc) v Lands and Forests Commission (1995) 86 LGERA 365 and Bridgetown/Greenbushes Friends of the Forest Inc v EDCALM (1997) 18 WAR 126.
Not a sausage for the Greenies, as WA’s finest legal minds shepherded the Department of CALM and its contractual tree-felling mates Bunnings to the fore, from any liability or indeed responsibility.
Prior to this spate of kamikaze litigation, the NSW Parks and Gardens Court (Paul Stein writing) had opined of the Precautionary Principle that it:
“… is a statement of common sense and is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty …” (Leatch v DG National Parks and Wildlife (1993) 81 LGERA 270 at 281-2)
Judges to the West of the Nullarbor showed no interest in the murmurings from some arcane court on the eastern seaboard, or indeed in the Convention on Biological Diversity entered into by Australia in 1992 (which defined the Precautionary Principle), or the Commonwealth-State Intergovernmental Agreement on the Environment signed the same year.
As for the Crown (and contractual mates) being bound by statutory inhibitions, the Sandgroping judiciary saw that off quick smart.
The WC Act provided for Ministerial exemptions to be granted, and the ignorant Green persons hadn’t even pleaded the non-existence of such exemption.
Bunnings thrived on its relationship with CALM and its executive director, but public resistance caused its parent company, Wesfarmers (under the eye of Michael Chaney), to change the name of the timber felling company to Sotico (Southern Timber Company), as Bunnings hardware was suffering boycott.
The winning hand of legislative exemption vested in a minister takes us to the present issue of exemptions granted under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), s517A.
Bob Brown has recently called out Murray Watt, the flaccid go-to Minister for the Environment, for his exemptions granted to Korea Zinc in respect of a proposed wind farm at St Patrick’s Plains on Tasmania’s Central Plateau.
The exemption consists of an “annual impact trigger threshold” under which KZ can kill up to four Tasmanian Wedge Tail Eagles per year (they are a larger subspecies of the mainland eagle).
Only one swift parrot a year may go under KZ’s hammer, but that’s out of an estimated population of 300 (yes, total population).
And on it goes: a licence to kill, carefully drawn up to cover many tens of bird, bat and butterfly species, many of them listed as on the verge of extinction.
This exemption covers the killing of individual specimens of species in respect of which the Act provides for a corporate fine of 50,000 penalty units, which Brown drily notes as at present rates being $16,500,000.
Handy to be onside with the minister. But what a reminder of the blight that these exemptions are on our statute books. Section 517A was concocted in 2006 (thanks JW Howard, who no one really thought was dedicated to the principles of the EPBC Act).
Our ancestors in the law spilled blood (literally) to get to the Declaration of Rights 1689, which as Brennan J pointed out in A v Hayden (1984) 156 CLR 532 stated:
“… the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal”.
By the Bill of Rights, the power to dispense from any statute was abolished (1 Will. & Mar. Sess.2, c.2, s.XII).
Parliament, as sovereign, may provide for the executive to dispense with the operation of statutes to particular individuals.
We may as well be living in the reign of James II. One has only to read what an offshore spiv, the late Alistair McAlpine, treasurer of the British Tory Party and adviser to la Thatcher at the time, thought of our regulatory apparatus:
“If you did business in … Australia, it was important to know politicians. Entrepreneurs today are well advised to study the character of the politicians and the civil servants in the country where they have interests. Today, so much of industry and finance is controlled by regulations. Politicians can enforce them or relax them, invent new ones or abolish old ones just as they please, without going anywhere near the parliaments to which they have been elected.”
Those gems from McAlpine’s 1997 opus, Once a Jolly Bagman.
We’re being taken for mugs, but only we can do something about it. Hello, is anyone home?
The NSW judiciary have shown some mettle, unlike their brethren/sestren on the west coast, but eradicating the assumptions underlying statutory exemptions requires a common view across the political landscape.
What chance of that?