When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The purpose of the Environment Protection and Biodiversity
Conservation Amendment (Standing) Bill 2015 (the Bill) is to amend the Environment Protection
and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act)[2]
to repeal section 487 of the EPBC Act (the standing provisions). The aim
is to therefore limit the ability of individuals and environmental groups to
challenge under administrative law a decision, a failure to make a decision or
conduct made under the EPBC Act or Environment Protection and
Biodiversity Conservation Regulations 2000 (EPBC Regulations).[3]
A person is prohibited from taking an action that has,
will have or is likely to have a significant impact on a matter of national
environmental significance except:
The unlawful taking of an action that has a significant
impact on a matter of national environmental significance may attract a civil
or criminal penalty.
Before an individual or organisation can commence legal
proceedings in a court, they must be recognised by that court as having the
right to instigate those proceedings. This is known as ‘standing’. The
significance of standing is discussed further later in this Digest. Under the ADJR
Act only ‘persons aggrieved’ by a government decision have the legal right
or ‘standing’ to challenge that decision. Subsection 3(4) of the ADJR
Act currently provides that a ‘person aggrieved’ is a person whose
interests would be ‘adversely affected’ by the relevant administrative decision
or conduct. The meaning of this provision has been the subject of a
considerable amount of judicial interpretation. As a general rule, only those
whose interests are directly affected by a particular decision or outcome have
standing.[15]
Applicants need to show a ‘special interest’, which is beyond that of a member
of the general public.[16]
- whose
interests have been, are, or would be affected by the conduct or proposed
conduct or
- who
have engaged in a series of activities for the protection or conservation of,
or research into the environment, at any time in the two years prior to the
conduct or the application for the injunction.[18]
Section 487 is proposed to be repealed by the Bill.
Section 475 is not being amended or repealed by the Bill.
Interestingly, the drafting and history of section 487 is
not one of an ‘open to all’ approach to standing but rather an ‘extended’ and
‘representative’ approach to standing. Indeed it is subject to conditions as
mentioned.
History of extended standing under
section 487
Section 487 of the EPBC Act was included in the
original Environment
Protection and Biodiversity Conservation Bill 1999 (EPBC Bill).[19]
The Explanatory Memorandum to that Bill explained:
This clause extends (and does not limit) the meaning of the term
‘person aggrieved’ in the Administrative Decisions (Judicial Review) Act
1977. A person or organisation will have standing under these provisions
only if the person or organisation has engaged in a series of activities
(including research) for the protection or conservation of the environment.
There must be a genuine and consistent pattern of such activities for there to
be ‘a series’ of activities.[20]
The Senate Committee inquiry into the original EPBC Bill
discussed the standing provisions in section 487 (and section 475). The
Committee did not agree with claims made during that inquiry that these
provisions would ‘open the floodgates’ of litigation. The Committee also
considered that ‘there are adequate safeguards to prevent vexatious
litigation’, noting that courts ‘have the capacity to screen out vexatious and
frivolous applicants’ and the ability for courts to award costs against such
applicants is also a deterrent.[21]
The Committee concluded that:
... the standing provisions of the Bill reach a fair balance
between enabling public involvement in enforcement of the Bill and ensuring
that decisions under the Bill are not unnecessarily delayed or impeded by
vexatious litigation. The Bill also provides certainty as to which persons have
standing.[22]
Past reviews relating to standing,
including under the EPBC Act
A number of reviews have commented on the issue of ‘standing’,
including the EPBC Act provisions.
The issue of standing in public interest litigation has been
considered at length by the Australian Law Reform Commission (ALRC) in two
separate reports. In 1985, the ALRC report on Standing in Public Interest
Litigation identified the common law rules relating to standing as
‘confused, unclear and restrictive’.[23]
In May 1995, the ALRC was asked to examine whether changes should be made to
the recommendations and draft legislation contained in the previous ALRC Report
in light of subsequent developments in law and practice. That second report confirmed
the 1985 findings and called for broader rules of standing in cases that have a
public element so as to ensure accountability and compliance to the law in
decision making.[24]
Independent review of the EPBC Act
An independent
review of the EPBC Act chaired by Dr Allan Hawke in 2009 (the Hawke Review)
found that the extended standing provisions in the EPBC Act in sections
487 and 475 have ‘created no difficulties and should be maintained’. In fact,
the report considered that ‘the question is whether these provisions should be
expanded further’.[25]
The Hawke Review noted that other legislation, both at the Commonwealth and state
or territory level, contains ‘open standing’ provisions that confer standing on
all members of the public for all actions. The review noted that:
Despite all the fears that the above types of provisions
would engender a ‘flood’ of litigation, they have been unproblematic. There is
no evidence of them being abused and the number of cases to date has been
modest.[26]
The Hawke Review further recommended that the review
provisions under the EPBC Act be extended to allow for merits review of
certain decisions, and that legal standing for the purpose of merits review
applications be extended to include those persons who made a formal public
comment during the relevant decision making process.[27]
The Productivity Commission’s report on Major
Project Development Assessment Processes in 2013 also considered the
issue of review processes, including ‘standing’ for third parties.[28]
The Commission recommended that standing to initiate judicial or merits review
should be available to proponents; those whose interests have been, are, or
could potentially be directly affected by the project or proposed project; and those who have taken a ‘substantial interest’ in the
assessment process.[29]
It further recommended that, in exceptional circumstances, the relevant review
body should be able to grant leave to other persons if a denial of natural
justice would otherwise occur.[30]
The Commission observed that ‘review processes can ensure accountability but
they can also delay projects through vexatious review applications’. However,
the Commission noted that courts have the power to ‘summarily dismiss an action
due to it being vexatious, frivolous, or an abuse of process’ and can also
award legal costs against vexatious applicants, which can help discourage
vexatious litigation. The Commission found that ‘under the EPBC Act, there
are no examples of summary dismissal for vexatious litigation’.[31]
In its 2014 report titled Access
to Justice Arrangements, the Productivity Commission borrowed the
thoughts of Justice Sackville who stated:
Like other catchphrases, such as ‘fairness’ and
‘accountability’ (if not ‘democracy’ itself), the expression ‘access to
justice’ survives in political and legal discourse because it is capable of
meaning different things to different people.[32]
The Productivity Commission’s point of commencement was that
‘promoting access to justice’ basically meant, ‘making it easier for people to
resolve their disputes’.[33]
Standing would therefore seem to play a key role in facilitating access to
justice.
In 2012, in New South Wales, the Independent Commission
Against Corruption (ICAC) issued a report titled Anti‑corruption safeguards and the NSW planning
system. In this report, ICAC stated that:
Third party appeal rights have the potential to deter corrupt
approaches by minimising the chance that any favouritism sought will succeed.
The absence of third party appeals creates an opportunity for corrupt conduct
to occur, as an important disincentive for corrupt decision-making is absent
from the planning system.[34]
Statistics on public interest
litigation under the EPBC Act
In terms of the use of the extended standing provisions
under the EPBC Act since it commenced in July 2000, there have been few
cases brought under section 487 relative to the numbers of projects referred
under the EPBC Act. For example, according to the Australia Institute:
- there
have been approximately 5,500 projects referred to the Minister under the
environmental impact assessment provisions
- approximately
33 actions have been commenced in the Federal Court by third parties in
relation to the EPBC Act’s environmental impact assessment process
- these
proceedings related to 27 projects or matters (in several instances, there were
multiple court proceedings in relation to the same action—for example, the Bell
Bay pulp mill and Port Phillip Bay dredging)
- most
relevantly, the proceedings taken by third parties only related to 22 projects
that had been referred under the environmental impact assessment process
(several related to non-referrals and one related to a policy document issued
by the Minister). This means that third party appeals to the Federal Court only
affected 0.4% of all projects referred under the legislation
- of
the 33 actions, four were discontinued or resolved with the consent of the
parties[35]
- of
the 33 actions, six were ‘legally successful’, in the sense that the applicant
received a judgment and/or orders in its favour. In one of these six, Mees v
Roads Corporation, the applicant was successful but the court decided on
discretionary grounds not to issue any relief.[36]
In one other, Mackay Conservation Group Inc v Commonwealth of Australia
(the Adani case), the applicant received consent orders in its favour
- all
other cases were legally unsuccessful and
- in
only two of the six ‘legal successes’ did the third party applicant achieve
their apparent desired substantive environmental outcome (that is, stopping or
substantially modifying projects they believed would significantly harm the
environment). The first was the Booth v Bosworth (2001) flying fox case
(which stopped the operation of an overhead electrical grid that was killing
flying foxes[37])
and the second was the Nathan Dam case (Queensland Conservation Council Inc
v Minister for the Environment and Heritage[38]).
However, the Nathan Dam was re-referred and as it is currently undergoing
assessment for the second time, it may still go ahead.[39]
As discussed earlier in this Digest, the EPBC Act contains
two provisions which provide extended standing allowing third parties to bring
legal proceedings in relation to the Act. This Bill proposes to repeal only one
of those provisions: section 487. However, the Australia Institute’s statistics
include cases brought under section 487 and those brought under section 475 of
the EPBC Act, and therefore fewer than 33 cases have been brought under
section 487. It is also worth noting that even where third party cases have
been unsuccessful, the cases themselves may still have been legally useful in
helping to clarify the application of the EPBC Act.[40]
In his submission to the Senate inquiry into the Bill, Dr
Chris McGrath identifies 25 cases brought by third parties using section 487 for
judicial review of decisions on actions referred for assessment under the EPBC
Act.[41]
The Department of the Environment identifies 37 third party legal challenges to
decisions made under the EPBC Act.[42]
However, the Department has separately counted the initial proceedings and any
subsequent appeals relating to the same decisions and involving the same
parties. For example, in the Nathan Dam case, a single judge of the Federal
Court found in favour of the Queensland Conservation Council.[43]
The Commonwealth unsuccessfully appealed that decision in the Full Court of the
Federal Court.[44]
The Department has counted this as two separate legal challenges, even though
both proceedings were related to the same challenge by the Queensland
Conservation Council in response to the same decision.
The Adani Carmichael mine case
The Bill is a response to a successful challenge by the
Mackay Conservation Group against the Minister for the Environment Greg Hunt’s decision
to grant approval under the EPBC Act for the Carmichael coal mine
proposed by Adani Mining Pty Ltd, reportedly worth $16.5 billion.[45]
The proposal includes development of an open cut and underground coal mine (reportedly
the largest coal mine in Australia, situated in Queensland’s Galilee Basin),
rail link and associated infrastructure in central Queensland.[46]
The Environment Minister approved that project on 24 July
2014, subject to certain conditions. On 12 January 2015, the Mackay
Conservation Group filed an application in the Federal Court for judicial
review of that decision. According to the New South Wales Environmental Defender’s
Office (EDO NSW), the Mackay Conservation Group’s challenge was based on three
grounds:
1. that the
Minister incorrectly assessed the Carmichael project’s climate impacts,
including failing to take into account the greenhouse gas (GHG) emissions that
will result from the burning of the coal that is mined, and the impact of those
emissions on the World Heritage listed Great Barrier Reef.[47]
The Minister is argued to have unlawfully confined his consideration of GHG
emissions from the mine to only:
[...] those that are reportable under the National
Greenhouse and Energy Reporting Act 2007, which covers only emissions from
mine operations.
However, emissions from the burning of the coal once it is
exported to India will by far eclipse any emissions generated in Australia by
the mining process itself.[48]
2. the Minister
ignored Adani’s poor environmental record:
In 2013 the Indian government found Adani guilty of serious
breaches of Indian environmental law, including illegally clearing mangroves
and destroying tidal creeks. Indian Courts had also found in 2012 that
infrastructure associated with the Adani’s port in Mundra had been built
without environmental approvals. The case alleged that the Minister ignored
that evidence, instead relying on an earlier statement made by Adani in 2010
that it has a good environmental record overseas.[49]
3. the Minister
failed to consider Approved Conservation Advice from his own Department on the
impact of the mine on two vulnerable species: the Yakka Skink and the Ornamental
Snake. ‘The conservation advices were approved by the Minister in April last
year, and describe the threats to the survival of these threatened species,
which are found only in Queensland.’ [50]
Under subsection
139(2) of the EPBC Act, the Minister was required to have regard to
the Conservation Advice in making his decision to approve a project/controlled
action that will or is likely to have an impact on a listed threatened species
or a listed threatened ecological community.[51]
The EDO NSW explained that:
The law requires that the Minister consider these
conservation advices so that he understands the impacts of the decision that he
is making on matters of National Environmental Significance, in this case the
threatened species.[52]
On 4 August 2015 the Federal Court made orders with the
consent of the parties, setting aside the Minister’s decision to approve the
project.[53]
Thus, the orders were made with the agreement of the parties to the litigation.
The Federal Court took the rather unprecedented move of releasing a statement
on 19 August 2015 ‘to correct media reports about the making of orders by the
Court affecting the proposed Carmichael coal mine project’.[54]
In short, it was pointed out to the Minister that there was legal error
affecting the decision he had made relating to the approval of the mine. The
Minister reportedly ‘conceded that an error was made and wrote himself to the
Federal Court seeking for his approval to be set aside’. [55]
Thus, the Federal Court’s media statement clarified and confirmed that the
parties had agreed the Commonwealth Environment Minister had failed to have
regard to approved conservation advices for two listed threatened species, the
Yakka Skink and the Ornamental Snake, contrary to the requirements of subsection
139(2) of the EPBC Act.[56]
While the Mackay Conservation Group also argued that ‘the
Minister failed to consider global greenhouse emissions from the burning of the
coal, and Adani’s environmental history, these matters are left unresolved
before the Court’.[57]
In essence, the Adani case was similar to the 2013 case Tarkine National Coalition
Incorporated v Minister for Sustainability, Environment, Water, Population and
Communities [2013] FCA 694 (the Tarkine–Shree
case).[58]
Tarkine–Shree Case
Background
On 18 December 2012, the then Minister
Tony Burke approved a proposal by Shree Minerals Limited to develop and operate
an open cut iron-ore mine in the Tarkine region in Tasmania.[59] The decision was
made under the EPBC Act and was subject to 29 conditions including
conditions relating to compensation for unavoidable impacts on Tasmanian
devils and their habitat.[60]
The Tarkine is home to several threatened
species, including the Tasmanian devil. The Tarkine is also one of the few
remaining Tasmanian devil populations not affected[61]
by the presently incurable Devil Facial Tumour Disease, which is predicted to
result in the Tasmanian devil becoming extinct within 25-35 years.[62]
The Tarkine National Coalition
Incorporated (TNCI) applied to the Federal Court for judicial review of the decision,
in relation to the proposal’s impact on Tasmanian devils, which are protected
under the EPBC Act as an endangered species.[63] TNCI
relied on four main grounds, one of which was that the
Minister had failed to comply with a mandatory requirement under subsection
139(2) of the EPBC Act that he consider an Approved Conservation Advice regarding listed
threatened species. The issue was raised that the approved conservation
advice was not provided to the Minister at all for the purposes of making his
decision, even though in his decision he made reference to taking into account
‘any relevant conservation advice’. TNCI thus argued that the Minister
did not genuinely and in good faith properly consider the actual approved
conservation advice. The Minister and Shree argued that TNCI’s
case unhelpfully elevated form over substance, because the information
contained in the Approved Conservation Advice was mostly contained in the other
material that was put to the Minister. Critically though, the other material
did not deal with the important matters specifically addressed in the
Conservation Advice: the disease’s incurable nature, the risk of the Tasmanian
devil’s extinction in the near future, and research priorities relating to the disease.
The Court stated that not all acts done
in breach of a legislative requirement which require the prior performance of a
condition are invalid. However, in this case, the Court pointed to indications
from the legislative scheme that support the view that the Minister must have
regard to the actual Conservation Advice and that it was not relevant that most
of that advice was available to the Minister by other means. In this case, the
actual Approved Conservation Advice was not looked at itself and given genuine
consideration by the Minister. The Court held that:
49. The Minister’s failure to have regard to
the document for the purpose of making his decision is fatal to its validity.
50. The failure may be characterised as a
failure to comply with a statutory obligation in the sense described in Project
Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335 at [92]
and [93] per McHugh, Gummow, Kirby and Hayne JJ. In accordance with Project
Blue Sky, it is the intention of the provisions of the Act dealing with the
protection of threatened species that an act done in breach of the requirement
imposed by s 139(2) should be invalid.[64]
The Court emphasised and explained that
approved conservation advice is given an important status in the EPBC Act.
It is a document which is approved by the Minister after advice from a
scientific committee. Such an advice, prepared specifically in relation to a
threatened species, would ordinarily be expected to be a significant document
to take into account in making a decision which has the capacity to affect that
species.
The Court stated that the Conservation Advice
was a ‘pivotal element’ in the protection of the Tasmanian devil, and that the
Minister’s obligation to give genuine consideration to the Conservation
Advice ‘deals with a fundamental aspect of the Minister’s role’. The drafting
of the EPBC Act explicitly requires the Minister to consider the
Conservation Advice, thus the Minister’s failure to do so resulted in the
decision being found void for jurisdictional error and thus set aside by the
Court.[65]
The Court’s decision suggests that the
obligation on the Environment Minister to consider Approved Conservation Advices,
and potentially other similar documents under the EPBC Act, cannot be
discharged other than by the Minister specifically considering the document
itself. Approved Conservation Advices are scientific and legal documents
that essentially go to explaining the conservation requirements of species to
avoid their extinction. In the Tarkine–Shree case, the Court basically stated
that a failure to consider them was a fundamental error of law.
Recent legislation to clarify
requirement to consider conservation advices
In November 2013, the Coalition government introduced
legislation into the Parliament to deal with the Federal Court’s decision in
the Tarkine case. The purpose of Schedule 1 of the Environment
Legislation Amendment Bill 2013 was to amend the EPBC Act so as to clarify
that a failure by the Minister to have regard to any relevant approved
conservation advice when making decisions under the EPBC Act will not
render such decisions, taken prior to the commencement of the Bill,
invalid.[66]
The Bill was retrospective in its operation and did not seek to deal with
future decisions made by the Minister where the Minister might fail to have
regard to any relevant Approved Conservation Advice. Schedule 1 of that Bill
was rejected by an amendment in the Senate and did not proceed.[67]
Notably, the Department of the Environment assured the Senate Committee during
the inquiry into that Bill:
Since the Federal Court declared the environmental approval
given to Shree Minerals Limited invalid on 17 July 2013, the Department has
ensured that relevant approved conservation advices are included in the package
of information considered by the Minister when making relevant decisions.[68]
Further, during the parliamentary debate on that Bill, the
Environment Minister, Greg Hunt, told the House of Representatives:
... I can guarantee that every decision I have taken and every
decision I will take is made with reference to expert conservation advice, in
the presence of the conservation advice and after consideration of the
conservation advice. This was a position inherited as a consequence of the
previous legal decision. So I can give the guarantee on the floor of this
House—again, subject to all of the strictures which apply to ministerial
statements on the floor of this House—that all decisions that are relevant to
date have been taken with consideration of the conservation advice, in the
presence of the conservation advice and through examination of the conservation
advice and that will continue to be my practice.[69]
Nevertheless, it appears that this did not occur in relation
to the Carmichael coal mine approval decision.
Government response to the
Carmichael mine case
Following the orders by the Federal Court to set aside the
Minister’s approval of the Carmichael Coal Mine and Rail Project, it was
announced that the Minister would reconsider approval for the project. The
Department of the Environment (the Department) has reportedly explained that
reconsideration of the decision in the Adani case would not require revisiting
the entire approval process. The Environment Minister would need to reconsider
one aspect of the approval process under the EPBC Act regarding the
potential impact on two threatened species—the Yakka Skink and the Ornamental Snake.[70]
On 18 August 2015, Federal Attorney-General George Brandis
announced plans to repeal section 487 of the EPBC Act stating that it:
...provides a red carpet for radical activists ... to use
aggressive litigation tactics to disrupt and sabotage important projects.[71]
On 20 August 2015, the Federal Government introduced the
Bill, with the Minister for the Environment explaining in his second reading
speech:
The EPBC Act standing provisions were always intended
to allow the genuine interests of an aggrieved person whose interests are
adversely affected to be preserved ... [but] ... were never intended to be extended
and distorted for political purposes as is now occurring ... Changing the EPBC
Act will not prevent those who may be affected from seeking judicial
review. It will maintain and protect their rights. However, it will prevent
those with no connection to the project, other than a political ambition to
stop development, from using the courts to disrupt and delay key infrastructure
where it has been appropriately considered under the EPBC Act.[72]
On 14 October 2015 the Minister re-approved the Carmichael
Coal Mine and Rail Project, making the approval ‘subject to 36 of the strictest
conditions in Australian history’ to minimise its potential for environmental
impacts.[73]
In a recent Senate Estimates hearing, Senator Birmingham explained:
In fairness, after the 're-decision', the government
recognised that there was always an ongoing risk in relation to minor
administrative oversights jeopardising the validity of an approval, and has
sought, but sadly has been unsuccessful in obtaining, passage of legislation
that could have prevented this type of instance occurring.[74]
Indeed, conservation organisations are still not happy
with the decision and it may yet be the subject of further legal challenges. According
to the Australian Conservation Foundation (ACF), for example, ‘scrutiny of
those conditions shows the plans that must be developed to mitigate the
project’s environmental impacts can be changed by the company without getting
the Minister’s approval.’[75]
ACF has also raised concerns that ‘the conditions do nothing about the climate
pollution that will result from burning the coal, which would be more than
Victoria’s entire annual emissions.’[76]
The successful ground of challenge in the Tarkine Shree case
and the basis on which the Minister’s original approval of the Carmichael coal
mine was set aside, was a failure to comply with subsection 139(2) of the EPBC
Act. That provision requires the Minister, when considering whether to
approve a proposed action that has, will have or is likely to have a
significant impact on a listed threatened species or ecological community, to
have regard to any relevant approved conservation advice. If dissatisfied with
the outcome of these cases, an option available to the Government is to amend
subsection 139(2) of the EPBC Act. While the Government has chosen a
different response, it is possible that the amendments to standing proposed by
the Bill may impact on the ability of concerned individuals and groups to independently
test whether there has been good faith application of, and proper compliance
with, the requirements of subsection 139(2) of the Act.
In the meantime, regardless of the existence of the
extended standing provision, the Government has been able to re-approve the
Carmichael mine with stricter conditions to address the concerns of
environmentalists. However, the practical effect of the additional conditions
may be impacted by the ability of Adani, under condition 33 of the Approval, to
revise approved plans or strategies (including plans for managing direct and
indirect impacts of the mine on listed threatened species and communities and
certain water resources) without the approval of the Minister, if Adani
considers that the revised plan or strategy ‘would not be likely to have a new
or increased impact’ on the relevant matters of national environmental
significance.[77]
Senate Environment and
Communications Committee
The Bill has been referred to the Senate Environment and
Communications Legislation Committee for inquiry, initially with a reporting
date of 12 October 2015. On 12 October, the reporting date was extended to
February 2016. Details of the inquiry can be found here.[78]
At the time of writing, the Committee had received 135 submissions, which are
discussed further in the section below on ‘Position of major interest groups’.
Senate Standing Committee for the
Scrutiny of Bills
On 9 September 2015 the Senate Standing Committee for the
Scrutiny of Bills published its comments on the Bill.[79]
The Committee noted that the Bill will result in restricted standing to bring
proceedings for judicial review of decisions made under the EPBC Act,
limiting it to the general standing requirement under the ADJR Act. The
Committee stated:
It is well accepted that restrictive standing rules pose
particular problems in the area of environmental decision‑making.
Although environmental decisions affect the public generally insofar as the
protection of the environment is a matter of established public interest, there
may be no single person or group who can show that their interests are affected
in a special way that is distinct from the interests of other members or
classes of the public. The result is that there may be cases where decisions
that breach important legal obligations which have been placed on government
decision-makers (enacted to protect the public interest in the environment)
cannot in practice be reviewed because no person or group’s interests are
affected in a manner which is distinct from the public generally.[80]
The Committee therefore expressed concern that:
... more restrictive standing rules may result in the inability
of the courts, in at least some cases, to undertake their constitutional role
(i.e. to ensure that Commonwealth decision-makers comply with the law).[81]
The Committee further observed that there is a risk that the
amendment ‘will not substantially reduce litigation given the uncertainty as to
the circumstances in which environmental NGOs [non-government organisations]
will be granted standing’. The Committee explained that this was because the
‘case law lacks clear principles for determining when environmental NGOs will
be accorded standing under the general law and under the ‘person aggrieved’
test of the ADJR Act’.[82]
The Committee was also concerned that ‘the Explanatory
Memorandum does not include any detailed justification for the proposed amendment’
nor ‘any evidence that indicates section 487 has led to inappropriate
litigation or has led [to] an inappropriately high number of review
applications’.[83]
The Committee noted that an independent review of the EPBC
Act in 2009 found that section 487 had ‘created no difficulties and should
be maintained’.[84]
The Committee pointed out that, in fact, the Independent Review considered that
the real question was whether the extended standing provisions in the EPBC
Act ‘should be expanded further’.[85]
Given its concerns that public interest litigation brought
by environmental NGOs may in many situations be the only effective practical
mechanism for enforcing laws enacted to protect the public interest in the
environment, and the possibility that the proposed amendment may re-direct litigation
to the issue of standing, rather than whether EPBC Act requirements have
been complied with, the Committee has sought detailed advice from the Minister
‘as to why this limitation on the availability of judicial review of decisions
under the EPBC Act is justified’.[86]
In response to the Government’s announcement on 18 August
2015, the Shadow Minister for Environment, Climate Change and Water, Mark
Butler and the Shadow Attorney-General, Mark Dreyfus stated that the ALP ‘won't
support weakening environmental protections or limiting a community's right to
challenge Government decisions’.[87]
They described the proposed changes to the EPBC Act as a ‘rash reaction
to the Government’s incompetence’, suggesting that the Government ‘has been
caught out for not properly managing the approval process for the Adani Mine’.
They further suggested that ‘the Government's claims that the EPBC Act
is costing jobs is just outrageous’ and that:
Since being passed by the Howard Government 15 years ago, the
EPBC Act has been the overriding national environmental protection law,
including throughout the mining boom—and environmental groups are required to
operate within this law.[88]
The ALP has also expressed concern that the Bill will have
‘adverse consequences’ on farmers and farming groups, suggesting that if the
repeal of section 487 is successful, ‘the only path to appeal farmers could
possibly have is under common law. Any such action would expose them to the
risk of very significant adverse cost orders’.[89]
In particular, Joel Fitzgibbon, Shadow Minister for Agriculture, has suggested
that the Agriculture Minister, Barnaby Joyce, should explain to farming
communities ‘why he is denying them in the future the right to appeal against
projects like Shenhua’.[90]
The ALP voted against the Bill in the House of
Representatives on 10 September 2015.[91]
The Australian Greens are opposed to the Bill and Adam
Bandt, member for Melbourne, voted against the Bill in the House of
Representatives.[92]
In response to the Attorney-General’s media release announcing the proposed
change (outlined above), Senator Larissa Waters, Australian Greens deputy
leader, described plans to limit public enforcement of environmental law as an
‘attack on democracy’. Senator Waters stated that ‘public enforcement of laws
is a crucial tenet of our democracy’ and ‘when governments fail to enforce or
comply with their own laws, it falls to community groups to hold them to
account’.[93]
The Australian Greens have also suggested that the Bill will ‘put big mining
companies above the law and stop Australians who care about the environment and
climate from upholding the law’.[94]
Independent members, Andrew Wilkie and Cathy McGowan also
voted against the Bill in the House of Representatives.[95]
The Palmer United Party (PUP) has expressed concerns about
the proposals in the Bill. Clive Palmer, PUP leader, has stated ‘I don’t think
we want to throw out our court system and blame the system because there’s been
a decision you don’t agree with’.[96]
Senator Wang of the Palmer United Party is reportedly concerned the proposed
changes would impact on farmers and community groups with serious concerns
about other developments such as the Shenhua Watermark coal mine in the
Liverpool plains. [97]
Independent Senator Glenn Lazarus does not support the
repeal of section 487, stating that the EPBC Act:
... is working well in ensuring projects are properly assessed
and the community has the opportunity to challenge projects. There is
absolutely no basis for a change or watering down of the legislation.
The Newman Government removed the rights of third parties to
appeal resource projects in Queensland and the impact was disastrous for the
people of Queensland.[98]
Media reporting prior to the introduction of the Bill
indicated that Independent Senator Madigan would vote against the proposal ‘in
its current form’, but suggested that ‘there may be some scope to ensure
federal environment laws struck a balance between the legitimate role played by
environment and community groups and the need to give projects investment
certainty’.[99]
Senator Xenophon also suggested he could vote against the
proposal, telling reporters he was ‘wary’ of any move to reduce the rights of
community groups. However, he also reportedly said he was ‘waiting to see the
government's Bill before making a decision’.[100]
Senator Muir of the Australian Motoring Enthusiast Party
has welcomed the Senate inquiry into the Bill, stating that ‘being from
Gippsland my natural instinct after many conversations with local farmers who
fear being affected by unconventional gas mining was to sit on the side of
caution’.[101]
At the time of writing, Senator Lambie’s position on the
Bill is unclear. She has stated that she is happy to have discussion with the
Government about the proposed changes but will not ‘rush into any decision’.[102]
Senators Leyonhjelm and Day reportedly support the changes
proposed by the Bill ‘in-principle’.[103]
Indigenous groups
The Kimberley Land Council has expressed strong opposition
to the changes proposed by the Bill, stating that:
The EPBC Act is the keystone for protection and
conservation of matters of national significance in Australia, places and
species that, by their very nature, enliven the interests of all Australians.
It is entirely appropriate that Australians are enabled, through current
section 487, to play an active role in upholding the protection of these
matters of national significance.[104]
People for the Plains is concerned that:
... it is frequently the case that Indigenous communities who
have strong cultural heritage connections to country are not physically,
directly connected to mining developments. Therefore under the repeal of
section 487, it would seem that many Indigenous people who have cultural
connection would have no right to seek judicial review of decisions made under
the EPBC Act.[105]
Mining and industry groups
The Queensland Resources Council has welcomed the Government’s
announcement of changes to the EPBC Act, calling for bipartisan support to
fix a ‘legal loophole’:
It is important that a spotlight is shone onto the current
flaws in the Environment Protection and Biodiversity Conservation (EPBC) Act
and consideration is given to correcting those flaws.
The current flaws enable activists to repeatedly launch
vexatious litigation against industry projects...
We applaud the government’s move to close legal loopholes
that are being abused to hold up multibillion dollar projects and call on
bipartisan support for closing those loopholes.[106]
In an interview on ABC’s Lateline program on 18
August 2015, Michael Roche, the executive director of the Queensland Resources
Council, stated that the technical loophole in the legislation first appeared
in 2013 in the Tarkine–Shree case. Mr Roche explained his understanding of the
legislative loophole stating:
[... it] relates to the fact that the minister, under the
legislation as current[ly] framed, has to have regard to every single piece of
paper that might be relevant to the decision.[107]
The Minerals Council of Australia has expressed its disappointment
with the Carmichael mine decision and what it also describes as a ‘loophole’
which it argues the conservation group has exploited. The Council has called on
the Federal Government to close that loophole, citing the economic consequences
of the decision.[108]
In its submission to the Senate inquiry, the Minerals
Council of Australia expressed support for the Bill, suggesting that it ‘will
reduce the opportunity for frivolous or vexatious legal challenges to delay
development projects that have met all regulatory requirements, without
compromising the ability of genuinely interested parties to pursue their
legitimate interests’.[109]
In particular, the Minerals Council expressed concern that court challenges
‘provide little environmental benefit, yet cost the proponent in terms of delay
and expenses’ and that ‘the acceleration of vexatious legal appeals in recent
years has put at risk a number of significant projects’.[110]
The Minerals Council also pointed to the formal public consultation processes
in the EPBC Act as providing opportunities for community input into
environmental approval processes.[111]
Ports Australia, while supporting the removal of section
487, noted:
... we are not convinced that the removal of this section will
significantly limit the number of legal challenges and hence delays to
projects. Any challenge may become more complicated when its gets to arguments
of standing or persons aggrieved as was often the case in public interest
environment matters prior to the introduction of the legislation.[112]
Environmental organisations
As indicated in the multitude of submissions to the Senate
inquiry into the Bill, many conservation and environmental organisations are
opposed to the Bill. Following the Attorney-General’s announcement (outlined
above), leaders of peak conservation organisations, including the Australian
Conservation Foundation, WWF Australia, The Wilderness Society, the NSW Nature
Conservation Council and the Humane Society International, issued a joint media
release condemning the proposed changes to the EPBC Act.[113]
The Australian Conservation Foundation (ACF), for example,
does not support the Bill, stating that ‘communities have a right to a healthy
environment’ and to ‘defend that right when a law hasn’t been followed’.[114]
The ACF has suggested that the Bill will:
...limit access to justice and complicate and prolong those few
legal actions that are brought under the EPBC Act, creating add[ed]
costs in the system and delays for proponents of developments that are affected
by such actions.[115]
The ACF also recently commissioned a poll which showed
that only 22 per cent of Australians support the proposals in the Bill and that
59 per cent considered that changing the law to prevent legal challenges would
undermine the independent role of the courts.[116]
Environment Victoria also strongly opposes any moves to
remove the right of individuals or groups to challenge environmental approvals
under EPBC legislation, suggesting that the Bill would be a backwards step and
would:
...remove a key function of public scrutiny of projects
affecting matters of national environmental significance, and prevents
environmental organisations providing an important role as environmental
watchdogs in public interest environmental matters.[117]
The Lock the Gate Alliance considers that the Bill will
‘drastically limit who can go to court to challenge Federal environmental
approvals’ and is ‘designed to prevent communities from going to court to
challenge bad government decisions, and restrict objection rights only to
individuals who can prove that they are directly aggrieved by a mining project’.
The Lock the Gate Alliance has responded to the Bill with a television
advertising campaign featuring broadcaster Alan Jones, who suggests that the
proposed amendment ‘puts at risk not only our environment but our very
democracy’.[118]
The NSW Environmental Defender’s Office (EDO NSW), which
represented the Mackay Conservation Group in the Federal Court challenge to the
Adani Carmichael mine project, has published a briefing note
in relation to the Bill.[119]
The EDO NSW supports ‘open standing’ for any person to seek judicial
review of government decisions and civil enforcement of breaches, which is even
wider than the current provisions in the EPBC Act. The EDO NSW notes:
The extended standing provisions as they currently appear in
the EPBC Act are more restrictive than the open standing provisions in
many NSW environmental and planning laws. Yet they are clearer and far
preferable to the common law test for standing under the ADJR Act.
There is no evidence that open standing provisions “open the
floodgates” to litigation or increase the likelihood of vexatious litigation.
Rather, there are strong arguments for broad judicial review rights, and for
extending standing under the EPBC Act to include merits review.[120]
Conservation groups have also responded to the claim that
the result in the Carmichael mine case was made possible by a ‘loophole’ and
that it represents a technical glitch by pointing out that the decision to
approve the mine itself was flawed when one takes into account all of the
evidence. They have stated:
The mine’s impact on vulnerable species shows up just one of
many problems that the assessment process failed to properly address and that
Adani has done its best to conceal.[121]
Farming groups
Farming groups have expressed concern that the Bill could
limit farmers and farming groups who might wish to make use of section 487 to challenge
particular developments.[122]
Another key concern for farming groups is apparently the potential for adverse
costs orders to be awarded against them if they bring a public interest case,
which could ‘risk the farm’.[123]
The National Farmers’ Federation (NFF) reportedly questioned
the timing of the proposed amendments in the Bill. In particular, the changes
were apparently announced shortly after the Environment Minister, Greg Hunt,
received letters from farming groups, including the New South Wales Farmers
Association, Cotton Australia, the Irrigators Council and the Caroona Coal
Action Group, requesting reasons for his decision to approve the Shenhua
Watermark coalmine in New South Wales.[124]
Brent Finlay, NFF President, initially called for the law to
be delayed until the impact on farmers was understood, suggesting that ‘it is
critical that farmers have access to the court system to ensure their interests
are fully considered during the EPBC assessment process’.[125]
However, the Minister for Agriculture, Barnaby Joyce, has
reportedly assured farmers that the proposed changes ‘would not affect local
agricultural producers with a stake in the productivity and health of land
impacted by a development’. He has been reported as saying that farmers can
‘still use their organisation and resources — such as those employed on
occasion by the NFF, through their fighting fund — to support individuals
affected by decisions’.[126]
In response to questioning, the Attorney-General told the
Senate:
Any farmer, any landholder, any businessman who is affected
by any environmental decision will have the standing to challenge that
decision, to seek administrative review of that decision. They do not rely,
they do not depend, upon section 487 of the EPBC Act for that standing.
They do not. It is very simple ... If they are affected, then, as a matter of
ordinary common-law principles, they have a standing in the court and they have
a right to challenge that decision. If they are not affected then they rely on
section 487. But section 487 is not the basis on which a person affected by a
decision can challenge it. They can challenge it under the ordinary law.[127]
The submissions from NFF and Cotton Australia to the Senate
inquiry into the Bill indicate that they do not support the removal of section
487 from the EPBC Act.[128]
The NFF states that this is ‘due to the risk of denying farming groups and
individual farmers the right to appeal against government decisions that they
believe are going to adversely affect farming communities or individual
operations’.[129]
In particular, the NFF notes that it:
... has not to date received sufficient assurances from
government that the passing of this Amendment will not impact on farmers and
their representative bodies’ ability to have continued access to the court
system to ensure their interests are fully considered during the EPBC
assessment process.
... Having to meet a more complex test of standing under the
ADJR Act would also lead to increased legal costs associated with the need to
first resolve the question of standing, before the substantive issues in a
dispute can be resolved.
Limiting the test of legal standing to landholders who are
subject to immediate impacts is also not sufficient as the effects of some
major projects can be felt beyond the immediate vicinity of neighbouring farms,
which implies that broader standing is warranted.[130]
Property Rights Australia
According to Property Rights Australia (PRA), the scope of
the discussion and considerations around the issue of standing are unhelpfully
confined and the need for the government to ‘bring balance and fairness for all
land uses and local communities where these resource projects are located’ is
long overdue:
PRA believes that s. 5 ADJR Act provides no clear pathway for
landowners directly impacted, near neighbours and local communities a simple
and cost effective route to “standing” as a “person who is aggrieved by a
decision.”[131]
Law groups and legal experts
The Law Council of Australia does not support the proposed
repeal of section 487, noting that the test in the section is ‘broader and
clearer’ than that under the ADJR Act, and has the potential to reduce
disputes about whether an applicant has standing and ‘therefore also the cost
and length of litigation’.[132]
The Law Council stated that there have been very few cases successfully brought
under section 487 and ‘certainly no avalanche of “vigilante litigation”’.[133]
The Law Council described section 487 as an ‘important safeguard for the rule
of law, for accountable and responsible government, and as an anti-corruption safeguard’.[134]
The Law Council further pointed out that the courts have ‘mechanisms for
managing frivolous and vexatious applications and there are numerous
disincentives to litigate’.[135]
The Law Society of New South Wales is concerned that the
proposed amendments ‘seek to limit Court oversight of executive decision-making’
which would:
...constitute a serious erosion of fundamental principles of
public accountability of the executive arm of government, and of the
transparency of decision-making... Such an approach is likely to undermine public
faith in government by limiting the Courts' ability to guard against the
arbitrary exercise of executive power in decision‑making about major
development projects at the Federal level.[136]
The Law Institute of Victoria (LIV) warned that
restricting those who can bring a legal challenge to projects with environmental
consequences will increase litigation costs as parties argue narrower grounds
for standing, or leave unlawful government decisions unchecked. The LIV has
further noted that courts already have powers to ensure cases are not brought
for improper purposes—including the power to summarily dismiss frivolous and
vexatious cases.[137]
A former federal court judge, Murray Wilcox, argued in his
submission to the Senate inquiry that ‘the Bill is futile’ and if the Bill is
passed:
The only change from the present situation will be that the
parties, and so the courts, will spend time examining the details of the
applicant’s association with the relevant issue or place. And people wonder why
litigation is so expensive.[138]
Professor Rosemary Lyster, Director of the Australian
Centre for Climate and Environmental Law, submitted:
Public interest litigation is a feature of litigation all
around the world as environmental organisations, community groups and
individuals seek the protection of the law to remedy, or apprehend, a breach of
the law which is likely to result in environmental degradation.
Indeed, environmental legislation is in a category of its own
for the reason that a breach of environmental law does not usually directly
impact any particular individual, and the environment is not able to represent
itself in legal proceedings.[139]
Furthermore:
...in the modern era, public interest litigation, including
environmental litigation, is regarded as part and parcel of a functioning
democracy under the Rule of Law. In fact, as Dr Edgar submits:
‘The likely consequence of the
liberalised approach to the special interest test for standing being applicable
if s. 487 is repealed, is not that environmental groups will necessarily be
excluded from challenging decisions made under the EPBC Act but that
courts will have to make the complex, multifaceted, assessments required by
such tests... this is likely to tie up courts in technical disputes rather than
issues concerning compliance with legislative provisions.’ [140]
Along with other commentators, lawyers Stephen Keim SC and
Chris McGrath have pointed to the low number of legal challenges being made to
decisions under the EPBC Act, suggesting that there has only been a
‘trickle’ of litigation rather than open floodgates. They explain that ‘one
reason for the lack of litigation by conservationists under federal
environmental laws is that going to court is very difficult, stressful and
costly’. They also note:
Another reason is that, because decision makers know that
they may be open to scrutiny in the courts, they are careful to make sure that
they apply the procedural requirements laid down in our federal environmental
legislation. Removing this potential scrutiny will encourage both public
servants and ministers to be less careful about complying with the law's
requirements.[141]
Chris McGrath finds it notable that:
There is no evidence of actual litigation (as opposed to
claims made in the media or the Minister’s second reading speech) in which the
widened standing provided by s 487 has been abused by taking frivolous or
vexatious action, or action merely to delay a project proceeding.[142]
Stephen Keim SC has also provided a valuable reminder of
the realities of decision making in the public service:
It is assumed that public servants and decision makers are
committed to applying the environmental legislation which Parliaments have
passed. However, the environment, the legislation and development proposals are
all complex. It is easy for decision makers (and the public servants who assist
them) to make errors so that particular decisions fail to apply the law in
important respects.
It is also the case, as in all areas of activity, that public
servants and decision makers can misread, misunderstand and, as a result,
misapply the law.
A healthy level of litigation in any area of human activity
ensures that the law is understood; it is applied appropriately; and problems
with the existing law are revealed so that Parliament may attempt to correct
and update the law in accord with societal and technological changes.[143]
Department of the Environment
In its submission to the Senate Inquiry into the Bill, the
Department of the Environment provided additional context for the proposed
amendment. The Department accepted that ‘legal challenges [are] a necessary and
appropriate discipline in the EPBC Act decision-making process’. The
Department nonetheless pointed out that ‘every legal challenge comes at a
significant cost – whether or not justified – to the Commonwealth and the
broader community’.[144]
The Department reported that where the court has ordered third party applicants
to pay the Commonwealth’s costs, the costs have been recovered in seven out of
25 cases.[145]
Citizen participation in public accountability has a price, although the
precise cost since 2000 was not included in the Department’s submission.
The Department of the Environment emphasised the following
points:
The repeal of section 487 would not prevent a person or
environmental or community group from applying for judicial review of a decision
made under the EPBC Act. Any person or organisation that can establish
they have standing will continue to have the ability to commence proceedings
for judicial review, either under the ADJR Act or the Judiciary Act.
... The repeal of section 487 does not change the assessment
and approval provisions of the EPBC Act as set out in Chapter 4, nor
does it alter the matters that the Minister must have regard to when deciding
whether to grant an approval.
The EPBC Act contains expansive public consultation
requirements in its referral and assessment processes.[146]
The Explanatory Memorandum states that the Bill does not
have a financial impact.[147]
As required under Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s
compatibility with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of that Act. The Government
considers that the Bill is compatible.[148]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights commented
on the Bill in its report on 8 September 2015.[149]
The Committee assessed the removal of extended standing for judicial review of
decisions or conduct under the EPBC Act against article 12 of the International
Covenant on Economic, Social and Cultural Rights, which contains a
guarantee to the right to health including a healthy environment.[150]
The Committee questioned whether the measures contained in the Bill limit that
right, and if so, whether that limitation is justifiable. The Committee noted
that the statement of compatibility in the Explanatory Memorandum to the Bill
does not justify that possible limitation for the purposes of international
human rights law. The Committee has therefore sought the advice of the Minister
for the Environment as to whether the Bill limits the right to a healthy
environment and, if so:
- whether
the proposed changes are aimed at achieving a legitimate objective
- whether
there is a rational connection between the limitation and that objective and
- whether
the limitation is a reasonable and proportionate measure for the achievement of
that objective.[151]
The significance of standing and
the effect of repealing section 487
The legal doctrine of ‘standing’ basically refers to the
right of a person or organisation to commence legal proceedings so as to
challenge a decision or outcome. Thus without standing a court will not hear a
person’s case. As a general rule, only those whose interests are directly
affected by a particular decision or outcome have standing and can challenge
that decision in the courts on administrative law grounds.[152] Applicants need to show a
‘special interest’, which is beyond that of a member of the general public.[153]
It is basically only persons or organisations who fall into this category (potentially
a much narrower group of persons) that would have standing if section 487 were
repealed.
Whether an individual or organisation has standing will
depend on the identity of the person, the type and subject matter of the
proceedings and the relationship the person has to those proceedings. In
Australia, the common law test for standing to bring judicial review or civil
enforcement proceedings generally requires the person to have a private right
that is interfered with or a ‘special interest’ in the subject matter of the
action. The standing test thus has the potential to restrict the range of
individuals that can bring environmental public interest litigation.[154]
Section 487 of the EPBC Act provides automatic
standing to Australian individuals and organisations who can demonstrate that they
were engaged in activities relating to environmental protection, conservation,
or research at any time in the two years immediately before the decision,
failure to make a decision, or conduct being challenged. This means that such
persons or organisations are able to challenge an EPBC Act decision,
failure or conduct under the ADJR Act. In simple terms, these challenges
involve a review by the courts of the legal process by which the decision was
made, as opposed to a review of the merits of the decision. Thus the court is
concerned only with whether there has been an error of law in the making of the
decision, or whether there has been breach of procedural fairness. If the court
finds an error of law based on the grounds listed in the ADJR Act, the
court can set the decision aside and it is then up to the original
decision-maker to make a new decision.
Sections 487 and 488 of the EPBC Act clarify and
extend the meaning of the term ‘person aggrieved’ under the ADJR Act, to
individuals and organisations engaged in protection, conservation or research
into the environment within Australia and its territories. Section 487 was
included in the EPBC Act so as to remove uncertainty about whether
environmental groups and persons undertaking activities relating to
environmental protection or conservation are persons aggrieved and could have
an automatic right to bring an administrative law action under the ADJR Act
in relation to decisions made under the EPBC Act.
In an interview on the ABC Insiders program,
Attorney-General George Brandis explained:
Section 487 of the EPBC Act is a very unusual, indeed
unique, provision. It says that although you are a person who is not affected,
either directly or indirectly, by a decision, nevertheless you have standing to
seek review of a ministerial decision in court if you happen to be interested
in the environment in purely an academic or public policy way. Now, that is a
variation of the position at common law. The ordinary orthodox position at
common law is that the only people with standing to approach the courts to
contest a decision are people who are either directly or indirectly affected by
it. And all the Bill does is seeks to restore the ordinary common law position.[155]
The obvious aim of repealing section 487 of the EPBC
Act is to reduce the number of challenges to decisions made regarding
approval of projects under the EPBC Act. Given that section 487 was
inserted into the EPBC Act to remove uncertainty about who is a person ‘aggrieved’
under the ADJR Act and in light of a number of High Court decisions
which discuss the status of environmental groups and standing in environmental
law cases, it is unclear that this will be the case. It is likely that
environmental groups will launch action to test their standing under the ADJR
Act. In this case, the proposed amendment may have the perverse result of
resulting in more delays to projects as environmental groups and individuals
have their standing tested on a case-by-case basis.
The proposed amendment could also have implications in
terms of Australia’s ability to give good faith practical effect to obligations
under international environmental treaties to which Australia is party. The
objects of the EPBC Act include the promotion of ecologically
sustainable development and the conservation of biodiversity, as well as ‘to
assist in the co-operative implementation of Australia’s international
environmental responsibilities’.[156]
The courts have previously taken the view that the legislation should be given
a wide interpretation, and that as far as its language permits, a construction
that is in conformity and not in conflict with Australia’s international
obligations should be favoured.[157]
The two past International Conferences on Environmental Enforcement in
Budapest, Hungary (1992) and in Oaxaca, Mexico (1994) established the principle
that citizen participation is an important supplement to governmental
enforcement efforts.[158]
Is section 487 unusual?
As noted above, the Attorney-General has stated that the extended
standing provisions in the EPBC Act are ‘very unusual, indeed unique’.
Similarly, the Minerals Council of Australia has suggested that ‘no other
Commonwealth Act has a similarly broad definition for standing in judicial
appeals’.[159]
However, similar provisions can be found in other
Australian legislation, such as section 58A of the Hazardous Waste
(Regulation of Exports and Imports) Act 1989 (Cth),[160]
section 140 of the Marine
Parks Act 2004 (Qld)[161]
and section 173O of the
Nature Conservation Act 1992 (Qld).[162]
There is also other legislation at both the Commonwealth
and state level that provides ‘open’ standing for ‘any person’ to commence
certain proceedings. In New South Wales, most environmental laws have ‘open
standing’ provisions which allow any person to bring civil enforcement
or judicial review proceedings. For example, any person can bring proceedings
in the Land and Environment Court for an order to remedy or restrain a breach
of the Environmental Planning and Assessment Act 1979 (NSW),[163]
the Native Vegetation Act 2003 (NSW),[164]
the Protection of the Environment Operations Act 1997 (NSW),[165]
and the Heritage Act 1977 (NSW).[166]
Expanded standing is also found in other countries. In
England and Wales for example, the law in relation to standing already complies
with the Aarhus
Convention (to which Australia is not a party). Article 9(2) of that
Convention provides that non-governmental organisations shall be deemed to have
a sufficient interest to challenge the substantive and procedural lawfulness of
a decision, as long as they promote environmental protection and meet any
requirements of national law.[167]
Is this about legal loopholes and
minor administrative errors?
As discussed earlier in this Digest, cases involving the
failure of the Minister for the Environment to consider approved conservation
advices have been described as exploiting a ‘legal loophole’ or as involving
‘minor administrative oversights’. The ADJR Act sets out grounds of
review of administrative decisions which specifically include failure to take a
relevant consideration into account in making that decision.[168]
The Court found in the Tarkine–Shree case that Approved Conservation Advices
are a relevant consideration, and emphasised their significance in the
Minister’s decision making process in the EPBC Act. Indeed, the Federal
Court described the requirement to have regard to any approved conservation
advice relevant to a threatened species before approving action which may have
impact on that species as a ‘pivotal element of that system of protection’.[169]
The issue in the Adani case was again that the Minister for the Environment
failed to have regard to approved conservation advice. The Federal Court in the
Tarkine–Shree case clarified that the EPBC Act placed an obligation on
the Minister to look at and give genuine consideration to the actual Approved
Conservation Advice. It seems that this obligation cannot be discharged other
than by the Minister specifically considering the document itself, especially
where substantive detail of significant matters is not adequately contained in
other material before the Minister.
It is unclear whether the Bill will achieve its intended purpose
of preventing disruptions and delays to projects approved under the EPBC Act.
There is a risk that, if section 487 is repealed, the resulting uncertainty could
have the perverse consequence of causing more delays and costs to projects as third
parties will first need to establish standing before the substantive issues can
be considered by the court.
Less than 30 judicial review proceedings have been brought
under the EPBC Act by third parties in the past 15 years since the
Act commenced. No evidence has been advanced to suggest that these proceedings
have been frivolous or vexatious, and courts have mechanisms available to them
to deal with such litigation.
Finally, section 487 serves as a mechanism to help ensure
that decision-makers lawfully comply with legislative procedures. As such, its
proposed repeal raises questions about accountable and responsible government.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Environment Protection
and Biodiversity Conservation Act 1999, accessed 7 October 2015.
[2]. Environment Protection
and Biodiversity Conservation Act 1999, accessed 7 October 2015.
[3]. Environment Protection and
Biodiversity Conservation Regulations 2000, accessed 19 October 2015.
[4]. Administrative Decisions
(Judicial Review) Act 1977, accessed 9 October 2015.
[5]. That
is, an action that would be prohibited under Part 3 of the EPBC Act without
approval under Part 9 of the EPBC Act: EPBC Act, section 67.
[6]. Department
of the Environment (DoE), ‘What is protected
under the EPBC Act?’, DoE website, accessed
25 August 2015.
[7]. For
example, because it is taken in accordance with an accredited management
arrangement or authorisation process (EPBC Act, sections 33‑36), and/or because it will not have a
significant impact on a matter of national environmental significance if the action
is taken in a particular manner (sections 75–77A).
[8]. The
EPBC Act does not provide guidance on the term ‘likely’. However, the
Department of the Environment’s Matters
of national environmental significance Significant
Impact Guideline, p. 3 states that: “To be ‘likely’, it is not necessary for a
significant impact to have a greater than 50 per cent chance of happening; it
is sufficient if a significant impact on the environment is a real or not
remote chance or possibility”.
[9]. The
term ‘significant impact’ is not defined in the EPBC Act
or its regulations. The Department of the Environment has produced three ‘Significant
Impact Guidelines’: Matters
of national environmental significance, Significant Impact Guidelines,
2013,
Actions
on, or impacting upon, Commonwealth land, and actions by Commonwealth agencies,
Significant Impact Guidelines, 2013 and
Coal
seam gas and large coal mining developments - impacts on water resources,
Significant Impact Guidelines, 2013.
The current guidelines provide information for stakeholders seeking to
determine whether a specific action is an ‘action’ for the purposes of the Act,
and set out criteria for judging whether the impact is likely to be significant.
[10]. Matters
of NES are listed in EPBC Act, Chapter 2, Part
3, Division 1, sections 12–24E.
[11]. EPBC Act, sections
26–28.
[12]. The
Convention on Wetlands of International Importance Especially as Waterfowl
Habitat (the Ramsar Convention), opened for signature 2 February
1971, [1975] ATS 48 (entered into force for Australia and generally 21 December
1975), accessed 19 October 2015.
[13]. Department
of the Environment, ‘What is protected
under the EPBC Act?’, op. cit.
[14]. Note
that conduct and the failure of a government official to make a decision
required to be made under legislation can also be challenged. Administrative
review is generally designed to safeguard the rights and interests of people
who interact with government agencies. Source: ‘Governance arrangements for
decision making’, chapter 20, in A Hawke, Interim
Report: The Australian environment act: report of the independent review of the
Environment Protection and Biodiversity Conservation Act 1999 (Hawke
Review), p. 310 and see also p. 313.
[15]. Cheatley
v R (1972) 127 CLR 291, [1972]
HCA 63; Tooheys Ltd v Minister for Business and Consumer Affairs
(1981) 54 FLR 421, [1981] FCA 121.
[16]. See,
for example, Australian Conservation Foundation v Commonwealth (1980) 146
CLR 493; Onus v Alcoa of Australia Ltd (1981) 149
CLR 27.
[17]. Note
that section 488 of the EPBC Act also provides that the ADJR Act applies
in relation to a person acting on behalf of an unincorporated association that
is a ‘person aggrieved’ under the ADJR Act as if they were the ‘person
aggrieved’.
[18]. EPBC
Act, subsections 475(6) and (7). Again in the case of an organisation, the
objects or purposes of that organisation must also include environmental
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