Magnetic Island North Queensland
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A young koala's beach adventure

December 19th 2007
Red Baron case reveals "dangerous precedent"

Horseshoe Bay with a semicircle overlay Following the legal win to the Red Baron Seaplanes announced yesterday by the Administrative Appeals Tribunal, Red Baron partner, Carol Mills, moved to heal rifts within the community over the case. But while the proponents may be licking their legal and financial wounds a much broader issue has been revealed by the appeal. One which former Executive Director of the Great Barrier Reef Marine Park Authority, Dr Don Kinsey, thinks could "set a very dangerous precedent." This was GBRMPA's decision to concede its jurisdiction over Horseshoe Bay.

The nearly year long dispute is reported to have cost the Mills $60,000 but Carol Mills called for respect of their opponents, Logan and Tanina Connolly's, rights to object. Carol Mills told Magnetic Times, "I think it's really important that people have a voice." she said. "I also respect their rights to uphold their opinion and I absolutely do not support people who say they should be run off the Island."

Carol Mills was however critical of the legal system which allows complainants through the AAT to make objections, which cost the other side and the public purse large amounts of money, for which costs cannot be retrieved from the losing party. "The AAT, as a court, should be looked at. If mediation prior to the legal case would have occurred it is possible some of the issues could have been dealt with and the cost to the public of the AAT case avoided. We would like mediation to be mandatory when applied to AAT cases."

The complete ruling by the AAT's Justice Garry Downes is expected to be released in full tomorrow but Carol Mills accepts that the safety and noise issues, such as the requirement that the Red Baron's noise not exceed 75 decibels from 1000 metres of the high tide mark, made by the Tribunal, will now be made part of their permit conditions when operating at Nelly or Picnic Bays but not at Horseshoe where most of the plane's operations occur. "None of the decision had anything to do with Horseshoe Bay. It's now under the jurisdiction of the State (Queensland)," said Carol Mills.

This is because of the startling concession, in the hearing on Monday, by GBRMPA's lawyer, that accepted a Mill's defence team argument that Horseshoe Bay is, by law, not within the jurisdiction of the GBRMPA but accepted as an "internal waterway" of Queensland. The issue was contested by Tanina Connolly at the hearing who questioned why all the maps indicated that it was.

Carol Mills told Magnetic Times however, "If you look at the Act the definition has always been there. It's not defined on the maps. It is not a precedent. It's always been there but for some reason hadn't been applied.

The ramifications of this concession will, no doubt, be occupying the minds of GBRMPA's legal Department for some time and it seems incredible that for decades this anomaly has existed without attention being drawn to it.

Dr Don Kinsey, a former Executive Director of GBRMPA, told Magnetic Times, "On the basis of what we know so far this sets a very dangerous precedent."

Magnetic Times understands that the formula used to determine an "internal waterway" is based on the drawing of a line between the two headland points of the bay. The line becomes the diameter of a circle and that, if the bay-side semi-circle which is then formed is smaller in surface area than the body of water on the same side, the bay may become an "internal waterway" and fall out of GBRMPA's jurisdiction. This is apparently the case with Horseshoe Bay.

Don Kinsey believes that mainland bays may have been assessed for this anomaly and corrected in the past but he isn't so sure about bays on Great Barrier Reef Islands. Using the formula Don believes that bays with a fairly narrow opening, as can be found in the Whitsundays and, even, possibly, Florence Bay on Magnetic, could now be at risk of a legal challenge to GBRMPA's authority.

Magnetic Times has sought comment from GBRMPA and the Queensland Environmental Protection Agency (who co-sign the permits with GBRMPA) regarding the implications and is awaiting a reply.

In the meantime it should be noted that Horseshoe Bay now defaults into the jurisdiction of Queensland's EPA as part of the State Maine Park which was formerly recognised to only exist between the high and low water mark. This will, it seems, now extend out to where the GBRMP waters begin - beyond the headland.

Story: George Hirst

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Red Baron case reveals "dangerous precedent"
 
6 comments
 
Carol Mills
December 20th 2007
Dear George,
just to clarify one point. It was not us that made an application to the Adminstrative Appeals Tribunal , it was Logan and Tanina Connolly.
 
chasmac
December 20th 2007
Ms Mills' suggestions about mediation before cases go to the AAT has some merit although you'd have to say that, without the lawyers being around, the startling concession by GBRMPA at the very end of the case would probably not have shown up at any mediation.
The question about recovery of costs is a very different matter. Cases in the AAT always involve a challenge to a decision of the Australian Government. The government always has available (and usually uses) the best legal brains to defend its position - regardless of the cost to the "public purse". The public expects nothing less and would be angry if government just conceded whenever its decisions were questioned.
When a member of the public is challenging a decision of the Commonwealth - be it about a pension or dole payment, a defence force matter, a permit or whatever, no matter how minor it seems the cost profile can be enormous - especially if the Commonwealth employs QCs at a cost of several thousand dollars a day. The threat of having to pay the Commonwealth's costs in the event of losing would nearly always scare off an ordinary person. This would be completely unfair and unjust. For this reason (and probably several others relating to justice) the AAT operates in a way where the parties pay their own costs and are not expected to pay anyone else's, particularly not the government's costs. Of course if the matter raised is trivial or vexatious the AAT won't usually let it in - the Tribunal is not some forum for having a general bitch about how tough it is at the top.
Any 'joined party' (they used to be called co-respondents like the third party in divorce cases - I won't go there!) joins by their own choice and suffers the same cost obligations as everyone else.
I commend Carol Mills for her civilized comments about the Appellents and only add that, try as I might, I can't find in the above article the reference she seeks to "clarify".
 
Marg Sewell
December 21st 2007
I think the Act needs to be changed to include all of Magnetics Islands "ins and outs" Surely the object is to protect the whole precinct not just bits of it while still allowing for senstively run businesses to operate. Magnetic is sitting on a knife edge and needs to take extreme caution with allowing development as shown by the Nelly Bay eyesore.
 
george villaflor
January 3rd 2008
maybe Shakespere was right:

lets kill all the lawyers.


George Villaflor
Aboriginal barrister
Canberra
 
Peter f Hughes
January 3rd 2008
Well said George.

Peter F. Hughes
Migloo Barrister at Law
Waurn Ponds
 
chasmac
January 7th 2008
Can't find that Shakespeare reference George and anyway the Bard did over lawyers far more eloquently than that. But before we all get stuck into lawyers we should remember that as consenting adults we buy into these debates informed enough to know they could lead anywhere, including some mysteriously uncharted waters (if you'll forgive the pun). I don't think this one is over yet and it may be that as things move along the lawyers (and other players) find themselves in deeper waters than they ever intended. Let's hope they/we don't end up in the territory of that 17th century proverb:

Lawyers houses are built on the heads of fools.


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