Chapter 13

Community participation early in decision-making processes is crucial to successfully defending the environment.

This chapter and Chapter 14 focus on different ways in which you can participate in decisions being made about the environment – from contributing to a planning scheme to challenging a particular development.

Participation can range from lobbying and letter writing to taking your case to the Resource Management and Planning Appeal Tribunal.

Don't put it off until tomorrow. Legal and planning processes usually have very strict time limits within which you are able to take action. And once a decision has been made there are strict deadlines for making appeals. Very often a small delay can mean losing your case – even if your claim is correct.

Tasmania's Resource Management and Planning System (RMPS) gives you the right to be involved in the planning process in the early stages – before problems crop up. (☞ Go to Chapters 4 & 5 for an outline.)

It is essential to keep a file to record your observations and all communications made.

This means keeping copies of letters and submissions sent, recording the details of all phone conversations relating to the matter, noting the date, time, person spoken to, and the details of the conversation.

A necessary first step in any environmental defence is to gather as much information as possible about the issue in which you are involved. This will be particularly useful if you need to get advice from a lawyer. It is surprising how many people lodge complaints without giving a thought to finding out and recording the most basic information that may be needed.

Information that may be useful could include:

• The time of day an event (such as a spillage) occurred

• The precise location (by description or using map coordinates)

• A map of the area indicating any environmental features of concern

• Evidence showing environmental harm such as photographs, videos and statements of witnesses

• The development application and the final decision in relation to a development activity

• Any reports or minutes of meetings held by local council and its relevant committees.
  (Council meetings are generally open to the public and most councils have business papers available on request. These often include important reports of council officers, giving the history of the matter and the particular officer’s opinion of the issue.)

• Expert opinion, or at least well-informed opinion, on the actual or potential harm you are concerned about

• Documents used to support the development application such as Environmental Impact Statements or other studies

• Reports or letters of any agencies who may have been consulted such as the EPA Division, Heritage Tasmania, Parks and Wildlife Service

• Information about zoning from the local council, the planning scheme that applies to the site and any relevant development control plan or development guidelines adopted by council

• The legislation which applies. Don’t be frightened by the complexity. Some sections are very useful to have, especially if you are talking with a lawyer

• In pollution cases, you can get a copy of any permits from the EPA Division and the local council.

Access to information that is on the public record is pivotal to the workings of a modern democracy. No matter what issue you are confronting, information is a vital ingredient.

Through the Right to Information Act 2009, citizens have the legally protected right to obtain information from councils and government departments. (See below, this chapter)

Ring the state pollution hotline, police, Parks & Wildlife officers, fisheries inspectors, Forest Practices Authority or your local council (as the case may be) as soon as you can and let them know what you have observed. Ask them to investigate your complaint promptly.

If an officer appears unresponsive to your call, you may need to use diplomatic persuasion to prompt them to carry out their responsibilities.

Ask to be called back once the issue has been resolved or to find out what action has been taken.

Follow up your call with a letter if appropriate. This will ensure that you receive an answer.

If the issue that concerns you is pollution and you cannot get the responsible authority to take samples quickly enough, then it may be useful to take a good sample for chemical analysis, particularly at the time the pollution is actually taking place.

Use glass containers, well washed and rinsed in distilled water. Find out how to store the sample appropriately and label it with time, date, location and circumstances.

It is often useful to contact your local Waterwatch or Landcare group. They may have sampling records for the area, and can provide advice about sampling techniques.

You can have a big say in developments in your neighbourhood – including such things as heights of buildings, tree removal, traffic hazards and waste disposal.

• If you have a concern about a local issue, don't be afraid to front up to your council and ask questions. Most local government officers will happily inform you about their planning schemes and local by-laws and where to inspect them. Some councils employ a legal officer who can help you to understand the local by-laws.

• You can get involved in setting the controls and zones in your local planning scheme
  (☞ Go to Chapter 4, to find out how)

• You can exercise your right to lodge an objection to a new development
  (☞ Go to Chapter 5 for information on how to find out about and appeal against a local development if you are unhappy with it)

• You can also take civil enforcement action to enforce planning and pollution controls in relation to existing premises.
  (☞ Click HERE for information about this.)

It’s best to get professional advice as soon as an issue arises. This will give you an overview of the legal options that are available and help you to decide on the best course of action. You may need to act quickly to give your case the best chance of success.

If you can, it’s best to get advice from someone (eg a lawyer or planner) who has special knowledge of environmental law and experience in bringing cases before the Resource Management and Planning Appeal Tribunal. A solicitor or community worker who knows the ropes may be able to identify quickly whether a potential appeal has good prospects of success.

Free advice about planning issues is also available through the Planning Aid project at Hobart Community Legal Service.

(☞ Go to Chapter 14 for more information about getting legal advice)

If you are concerned that another person's activities are damaging the environment and that they may be in breach of legislation, you may not have standing to take legal action yourself (☞ see Chapter 14). However, you may be able to prompt the relevant authority (such as your local council) to take legal action.

You should approach the designated person or body (usually prescribed in the relevant Act) and ask them to investigate your concerns. You should also make your request in writing and ask them to let you know what actions they take in response to your request.

In some situations, a member of the public who can demonstrate that they have legal standing (☞ see Chapter 14) can take civil enforcement action.

If a government agency refuses to take action when it should, you may take the matter to the state (or federal) Ombudsman, who has the power to investigate the issue and pressure the agency to take appropriate action. (☞ See below, this chapter, for more information about the Ombudsman)

In Tasmania, a number of statutes enable a decision of a local council or state body to be challenged in the Resource Management and Planning Appeal Tribunal. The Tribunal's decision can be appealed to the Supreme Court. (☞ see Chapters 5 and 14)

Where the public body is a Commonwealth one, its decision can be challenged in the Administrative Appeals Tribunal, if the relevant legislation provides for this.

You can apply to the Supreme Court for review of a decision of a government agency. The court does not consider the merits of the decision, only whether the decision-making process was appropriate. The Court will consider, for example, whether

• the parties were given a fair opportunity to present their case

• the decision-maker was unbiased and made a 'reasonable decision'.

• the relevant statutory provisions were correctly applied

If a government agency is not doing what it should under a particular statute, you may be able to apply for a 'prerogative writ' in the Supreme Court. The court can order the agency to do what it should do, or stop doing what it should not be doing. Seek legal advice before considering this option.

If you are concerned that environmental damage is being caused in your area, there is a range of things you can do to prevent it.

Before you consider taking legal action against the person you think is responsible for the damage, consider first that there are other options that may solve the problem more quickly, more amicably, and with less expense.

Often the easiest way to resolve a situation is simply to approach the person causing the problem and discuss it with them. It is surprising how many people avoid doing this.

It could be that the person did not know that their activity was causing harm, and on becoming aware of your concerns, may agree to modify their activities.

Similarly, it is well worth contacting community bodies operating in the local community, such as Coastcare groups, Waterwatch and progress associations. Because of their established links within the community, they may help to resolve the problem amicably, avoiding expense and conflict.

Generally, you should not consider legal action until you are sure that the problem cannot be resolved at this level.

In most situations, a government agency is responsible for regulating the activity you are concerned about. If the relevant authority has the power to rectify the problem, it usually has a range of steps it can take. It can exert pressure on the person, it can issue an infringement notice, a direction or other notice. If those more cooperative approaches fail, the agency can usually bring a prosecution to court.

Going to court to resolve a problem means there is usually a winner and a loser. In some cases the loser is required to pay the winner's costs (although this is not usually the case with the Resource Management and Planning Appeal Tribunal.)

Usually it also means the involvement of lawyers, and the feeling of loss of control as legal processes and concepts take over the dispute. In recent years this has lead to an increasing demand for less adversarial ways of resolving conflicts.

This is a process in which the parties, together with a neutral, trained third person (the 'mediator'), identify and isolate the issues that are in dispute, develop options to address these issues, consider alternatives and reach a mutual agreement that will meet the needs of both parties.

Mediators act as facilitators to help you find solutions yourselves but, unlike a magistrate or the Tribunal, they don't decide who is right or wrong, nor make decisions for you.

The process of mediation/negotiation forces the parties to clearly define their issues, evidence, arguments and ‘bottom line’ stance. The process will not work if parties are reliant on broad statements, emotive arguments and anecdotal evidence.

Negotiation / mediation can take place at any time, but it is best where it happens soon after the conflict arises.

By addressing the conflict early, mediation may prevent you resorting to litigation. Mediated settlements are generally more effective as all parties have had input into the final agreement.

The primary reason for using these methods is that parties have more control over the process of settlement rather than being confined by the rules of a court proceeding.

When entering into negotiations your group must first decide if it is actually prepared to negotiate the issue and will abide by the decision reached. You should then agree on the options you will work from:

• the best possible outcome

• outcomes you would be happy with

• the ‘bottom line’ below which you will call off the negotiations

Make sure the group reaches agreement on what it wants before anyone negotiates or mediates on the group's behalf. It is important to keep everyone aware and up to date with information as the process develops.

You should also look at the other side's interests and opinions as this will give you an understanding of their position and prepare you for the arguments they will put forward. This will also enable you to propose more effective solutions, which both sides can agree to.

At the end of the mediation process (if successfully brokered) a written agreement is usually drawn up. This is not necessarily legally binding but, if the parties agree, it can be made so by a lawyer.

Keep in mind that the Resource Management and Planning Appeal Tribunal encourages mediation in the first instance and provides a trained mediator for matters before the Tribunal (☞ Go to Chapter 14 to see how the Tribunal works).

In some cases using legal avenues is the most appropriate way to sort out a problem. However, most people find mediation very helpful – and if it doesn't work, the court system can still be used.

• you want to sort out the problem as peacefully, effectively and cheaply as possible

• your problem is not really ‘legal’

• you don't want the problem to escalate so much that it has to go to court

• you can't (or don't want to) pay the costs associated with court proceedings

You can find out how to contact mediation services from the Yellow Pages in your phone book or from the Hobart or Launceston Community Legal Service or the Environmental Defenders Office.

Another service, Positive Solutions, can be contacted at Ph: 6231 1301.

Don’t rely on legal processes alone to win your case. You will need to use a mix of strategies in order to be successful in most environmental cases.

In tandem with using legal processes, it may be critically important to lobby certain influential people.

• your local councillors and members of parliament

• ministers and shadow ministers

• departmental heads

• parliamentary committees

• your local community

Sometimes it may also be necessary to draw public attention to your issue by using the media – which can alert other people in the community to the problem.

How to run effective publicity campaigns is beyond the scope of this book. Organisations like Environment Centres are able to give you further advice.

When defending the environment it is easy to become a victim yourself!

Increasingly, environmental advocates are being subjected to intimidation and harassment, including being sued in court on minimal grounds (known as SLAPP suits) – the aim being to disable their campaigning effort. Even if such charges fail, they can impose considerable stress and costs on the victim.

A full discussion of these issues is beyond the scope of this Handbook. However, there are now some good books on the market which describe organised anti-environmental harassment techniques and how to avoid them. (☞ See below for a list of publications and contacts.)

Everyone has the right to protest, but this right is subject to legal limits. Before you protest you should check what your rights are and be aware of potential financial risks to yourself and other participants.

This is particularly important if you are planning to protest on private property or, for instance, a designated public forest.

As in all discussion of public issues, individuals can protect themselves from defamatory statements. Environmental issues are no different, so it is very important to avoid saying or writing anything defamatory which could trigger a legal action against you.

Laws of defamation are rather complex. However, anything you say or write may be defamatory if it conveys a meaning, whether explicit or implied, which tends to:

• lower a person's reputation in the eyes of ordinary reasonable members of the community

• lead people to ridicule, avoid or despise the person

• injure the person's reputation in their trade or their profession

Previously, any person, statutory corporation, trade union or incorporated association can claim the right to protect their reputation using the defamation laws.

In Tasmania, recent changes now mean that most corporations cannot take action for defamation. Corporations with objects that do not include obtaining financial gain for its members, and corporations which employ less than 10 people, may still have an action in defamation in relation to published statements about the corporation.

1. In Tasmania, in order to claim the defence of justification, you need to prove that the statement is “substantially true”. Statements of opinion must be based on 'proper material' and be in the public interest.
   
2. Play the issue, not the person. Avoid risk of defamation by always referring to issues, not a person's personal involvement.
   
3. In legal terms, you have 'published' a statement the instant you say it or write it down.

If you have any doubts, check with your Community Legal Service (☞ See contacts below) or their excellent handbook.

Activist Rights Website
This site provides useful information about peaceful protests, avoiding defamation and your rights if you are arrested.
(Click HERE to see.)

Sourcewatch websites
(Click HERE and HERE)

• Inside Spin by Bob Burton
• Global Spin by Sharon Beder
• Secrets and Lies: The anatomy of an antienvironment PR campaign by Nicky Hager and Bob Burton
• Defamation Law and Free Speech by the Whistleblower Network
• Strip the Experts by Brian Martin

To obtain these publications try the community groups listed below or your local library.

Environment Tasmania: (Website)
PO BOX 1073 Hobart, 7001 Ph: 0428 554 934
Email: office@envirotas.org

Tasmanian Environment Centre:
102 Bathurst Street, Hobart 7000 Ph: 6234 3552 Fax: 6234 5543
Email: info@sustainablelivingtasmania.org.au

Launceston Environment Centre: (Webiste)
72 Tamar Street, Launceston 7250 Ph: 6331 8406 Fax: 6331 8418
Email: info@lec.org.au

Environmental Defenders Office: (Website)
131 Macquarie Street, Hobart 7000 Ph: 6223 2770 Fax: 6223 2074
Email: edotas@edo.org.au

For information about defamation or defending yourself legally, you should contact the

Community Legal Services: (Website)
166 Macquarie Street, Hobart 7000 Ph: 6223 2500 Fax: 6223 2510 Email: hcls@vision.net.au
68 York Street, Launceston 7250 Ph: 6334 1577 Fax: 6331 5237 Email: lclc@vision.net.au
62 Stewart Street, Devonport 7310 Ph: 6424 8720 Fax: 6424 4604 Email: nwclc@bigpond.net.au

On 1 July 2010, the Right to Information Act 2009 replaced the Freedom of Information Act 1991 in Tasmania. This section explains the procedure for accessing information from government departments and agencies under the new legislation.

The Ombudsman has released draft Guidelines and a Manual regarding the application and operation of the Right to Information Act 2009.

There is also a Commonwealth Freedom of Information Act, which is relevant to applications for information held by federal government agencies.

Government agencies, Ministers and local councils hold an enormous amount of information in many forms. You may wish to obtain copies of information held by the government – such as reports, policies, submissions, manuals or rules – or information about the operations of the government for a variety of purposes. Freedom of information laws, such as the Right to Information Act, are designed to give citizens a legal basis and framework for demanding access to that information. Making this information available improves governance by making the government more accountable and increasing citizens’ ability to participate in decision making.

The Right to Information Act 2009 (RTI) aims to achieve more open government by emphasising the idea of a right to information and encouraging pro-active disclosure by government agencies. Under s.7 of the RTI Act, a person has a “legally enforceable right” to be provided with information in the possession of a public authority or Minister unless that information falls under one of the exemptions provided in the Act.

You can request information from any state government department, minister or statutory body, including local councils. The RTI Act does not apply to the private sector, however it does apply to state or council owned businesses (including regional water authorities), government business enterprises (such as Forestry Tasmania) and corporate bodies established under legislation for a public purpose. Some information can also be obtained in relation to private organisations that receive funding from the government or perform a public function.

The RTI Act provides that the government may disclose information in one of four ways:

• Required disclosure refers to information that a public authority or Minister must disclose according to the RTI Act or any other law (such as annual reports).

• Routine disclosure refers to information that the public authority or Minister discloses voluntarily but not in relation to any particular enquiry (for example, information about draft policies on a Council website).

• Active disclosure refers to information disclosed in response to a particular request, but without any formal application under the RTI Act (for example, information provided after an informal request is made).

• Assessed disclosure refers to information disclosed in response to a formal application under the RTI Act.

Unlike the situation under the Freedom of Information Act, an application for information is now a last resort. Agencies are encouraged to release information more freely, without insisting on the formal process being followed.

As a first step, you should contact the RTI officer in the government agency that you think holds the information you need and make a request. These requests for “active disclosure” do not need to take any particular form – you might ask in person, by telephone, or email – but it is always a good idea to confirm a request in writing.

The agency may provide the information you have requested, provide some of the information you have requested or can claim that the information is exempt.

If you are not satisfied with the response from the agency, you can lodge a formal application for an “assessed disclosure”. These applications must be made in writing - agencies will generally have an RTI application form on their website.

Public authorities are required to assist you to make a valid application, so if you have any questions about the application form, contact the relevant RTI officer.

You have a broad right of access to records held by government agencies (including documents, emails, disks, maps, plans, tapes, images or messages). However, you do not have the right to access all information.

Sections 25 – 32 of the RTI Act set out some categories of information that are exempt from disclosure. These relate to certain types of internal government deliberations (such as briefing papers to Ministers and Cabinet documents), information affecting state or national security and information that would prejudice investigations or the administration of justice.

Sections 34 – 42 provide additional categories of information that may be exempt, but only if disclosure would be “contrary to the public interest.” These include some internal government deliberations, personal information and information likely to affect the state economy or natural, cultural or heritage resources. Schedule 1 to the RTI Act sets out some matters that will be relevant to an assessment of whether disclosure is in the 'public interest'. Schedule 2 also contains a list of matters that will not be relevant to this assessment.

If a document contains information about someone’s personal affairs, the relevant agency must consult that person before deciding if the information should be released.

Most exemptions exist to facilitate the proper working of government. However, in some situations a government or government agency may use these exemptions to conceal information – by taking the issue to Cabinet, for instance. If you are dissatisfied with the reasons for non-disclosure, then you may appeal (see below).

Agencies may also refuse an application on the basis that it is a repeat or vexatious application. The Ombudsman has released guidelines outlining when an application will be considered 'vexatious'.

Applications must be responded to as soon as practicable after an assessment has been made, but generally no later than 20 working days. If an application needs to be refined or directed to another agency, the applicant should be consulted about this within 10 working days.

Sometimes it will be necessary for the public authority or Minister to consult with a third party about the release of information (for example when it involves personal information). The time limit for responding to an application can be extended by up to 20 working days to allow this to happen.

Requesting information under the RTI Act may be too slow in some situations where information is needed in a hurry, such as when an appeal must be lodged.

• you may be able to inspect the record or listen to tapes etc

• you may receive photocopies or a transcript of the record

Where a document contains both exempt and non-exempt information, a copy of the document can be supplied with the exempt information blanked out.

You will need to discuss the format in which you wish to receive information with the public authority.

There are no charges for “active disclosures”, so in most cases obtaining information should not cost you anything.

If you do need to apply for an “assessed disclosure”, there is an application fee (currently $34.50). However, unlike the FOI Act, there are no additional fees for copying documents.

The application fee may be waived if you:

• have financial difficulties;

• are a Member of Parliament acting in connection with your official duty;

• intend to use the information for a purpose that is in the general public interest.

If you are unhappy with the RTI officer's decision, the first step is to request an internal review. You will need to make this request in writing to the 'principal officer' of the agency within 20 working days after receiving notice of the decision. The “principal officer” may be the CEO of a government business enterprise, the General Manager of Council or the Head of Agency for the relevant government department.

The principal officer must arrange for a new assessment to be conducted by a different employee of the public authority as soon as practicable. You will be advised of the decision made by the internal review officer.

If you are unhappy with the outcome of this internal review, or have not received an answer within 15 working days, you may apply to the Ombudsman for an external review (s.44). The request must be in writing and should include your original application, any decisions made and all relevant correspondence between you and the agency or Minister. You should read the Ombudsman's Review Guidelines before applying for a review.

Note 1: You can generally get better results in an RTI review application if you are familiar with the Act (including the exemptions). You can download the RTI Act HERE.

Note 2: Keep a file recording all your communications with government officers about your RTI request. These records will be invaluable should you need to prove that a department has treated you unfairly or not complied with the Act.

• Office of the Ombudsman
  GPO Box 960, Hobart 7001 Ph: 1800 001 170
  Email: ombudsman@ombudsman.tas.gov.au

• You can obtain further information on RTI, including implementation bulletins, from the website .

• For information about federal FOI access, contact the Attorney-General’s Department (Information Law Branch)
  Ph: (02) 6250 6818

If you have concerns about the administrative actions of a government authority (that is, you believe the agency has acted incorrectly or not taken action it should have) you can lodge a complaint with the Ombudsman.

The Ombudsman will investigate your complaint and, if it is justified, recommend an equitable solution to the problem.

It should be stressed that the Ombudsman does not act as an advocate for you. The role of the office is to carry out investigations independently and impartially.

The Tasmanian Ombudsman is also a delegate for the Commonwealth Ombudsman, so that if you have a complaint against any government department or authority – whether Commonwealth, State or local – you need only contact one office (☞ see below)

Anyone – individuals, organisations or incorporated bodies – can make a complaint to the Ombudsman.

You should first try to resolve your problem by talking or writing to the agency concerned. If you have not already done so, the Ombudsman will usually refer you back to the agency.

The Ombudsman aims to make it as simple and as easy as possible for a person to air a grievance. You are advised to keep good records and put your concerns in writing. The Ombudsman's staff will provide assistance where necessary.

Tasmanian Ombudsman: (Website)
Ph 1800 001 170 (freecall)
99 Bathurst Street, Hobart 7000 Ph: 6233 6217 Fax: 6233 8966.
3 Wellington Street, Launceston Ph: 6336 2965 Fax: 6336 2900