Environmental Defenders Offices
This chapter outlines the history of the Environmental Defenders Offices
(EDOs), the functions it undertakes and its funding arrangements.
This chapter draws on the evaluation of the EDOs in the Productivity
Commission's 2014 report, Access to Justice Arrangements,
as well as evidence provided in the committee's submissions and at public
Environmental Defenders Offices
The EDO in New South Wales was founded in 1985, and was the first of the
national network of environmental lawyers which unified in 1996. The national
network of EDOs is governed by a managing committee, made up of members of the
state and territory EDOs.
Currently, there are eight state and territory community environmental
law centres which form the EDOs of Australia.
The work undertaken by the EDOs relate to:
legal advice and representation;
community legal education programs; and
formulation of environmental policy and law reform.
The EDOs are the only public interest environmental lawyers in
Australia. As a result of this status the EDOs of Australia has argued that:
...access to environmental justice ultimately depends upon our
continued capacity to deliver a range of specialist legal services to the
The Productivity Commission, in its 2014 report on access to justice,
noted that the EDOs spend the majority of their time on public education and
public interest litigation:
...around one quarter of total EDO activities relate to law
reform, with the remainder involving advice and education, and conducting
public interest environmental litigation.
The EDOs have argued that they provide a unique service to local
communities through their education programs:
EDOs deliver services that are not provided by any other
organisation. We play a critical role in ensuring that community members
understand the laws and decisions that affect them, and that their involvement
in decision-making is efficient and effective.
EDOs have also played a significant role in public interest
environmental litigation, which they noted is defined as:
...litigation undertaken by a private individual or community group
where the dominant purpose is not to protect or vindicate a private right or
interest, but to protect the environment.
Their main criteria for assessing requests for legal assistance concern:
whether the matter is one of environmental protection;
whether it is in the public interest; and
whether the applicant could otherwise afford private legal
In their submission to the Productivity Commission, the EDOs provided a
breakdown of their state and territory offices' activities (Figure 3.1):
Figure 3.1: Work undertaken by EDOs in 2012–13
Australian Network of Environmental Defenders Offices, Supplementary
Submission on Draft Productivity Commission report into Access to Justice
Arrangements, 2 July 2014, p. 5.
Collectively, the EDOs currently employ 20 full-time legal staff and 17
The EDOs receive funds through fees, donations, gifts and government grants
and programs. EDOs of Australia commented that 'the funding received by each
office fluctuates markedly from year to year, due to project‐based funding, one‐off philanthropic
grants and the variable success of fundraising efforts and income from services'.
In addition, government funding arrangements for EDOs vary across their
state and territory offices with each office receiving different levels of
funding from their state or territory government and the Commonwealth. The
Commonwealth has provided recurrent funding for over 18 years. Recurrent
funding was around $100,000 in 2014–15 for the EDOs through the Community Legal
Service Program managed by the Attorney-General's Department.
Commonwealth recurrent funding, as a proportion of funding as at 30 June
2013, was as follows:
Queensland – 100 per cent;
Northern Territory – 85 per cent;
South Australia – 80 per cent;
North Queensland – 75 per cent;
Tasmania – 73 per cent;
Australian Capital Territory – 56 per cent;
Western Australia – 45 per cent; and
New South Wales – 5.2 per cent.
In addition to recurrent funding, the previous Commonwealth government
provided supplementary funding of $300,000 per year from 2013 through four-year
funding agreements with the EDOs.
While only a portion of the supplementary funding was received before the
agreements were terminated at the end of 2013, the funding provided the means
to increase services. The Northern Territory EDO (EDONT), for example,
indicated that it had employed an additional solicitor. The additional capacity
allowed the EDONT 'to provide a kind of outreach service for the first time,
highlighting the dramatic levels of unmet need for our services in remote NT
The Attorney-General's Department indicated that the EDOs had received
base (recurrent) and supplementary funding.
Work of the Environmental Defenders
One of the principal functions undertaken by EDOs is community legal
education. EDOs produce fact sheets on a range of topics and bulletins
providing updates on changes to laws and policies. They also run outreach
programs in consultation with Indigenous communities in NSW, Western Australia
and the Northern Territory.
The EDOs have been involved in a number of high-profile environmental
cases. The EDO Queensland, for example, has been involved in cases concerning
the Springbrook rainforest, which resulted in the protection of rare and
threatened species from a proposed development,
and the Nathan Dam case, in which the Commonwealth Minister for the Environment
was compelled to consider the flow-on impacts of a proposed dam in Central
Nationally, the EDOs have been involved in numerous actions on a range
of environmental matters, including: mining and coal seam gas, native plants
and animals, climate change and energy, Aboriginal communities, coastal marine
and fisheries management, and planning development and heritage.
The EDOs of Australia commented that EDO advice 'redresses a significant
imbalance between community members and comparatively well-resourced government
authorities and private companies'.
Defunding of the Environmental Defenders Offices
In December 2013, the Mid-Year Economic and Fiscal Outlook (MYEFO)
outlined cuts for Legal Policy Reform and Advocacy Funding including a $10
million cut in funding over four years to the EDOs.
The Attorney-General's Department noted that the supplementary funding
agreements entered into by the previous government included an immediate
termination clause. This was executed immediately with the December 2013 MYEFO
announcement. At this time, the EDOs were also notified that their ongoing base
funding would not be renewed beyond its expiry date of 30 June 2014. The
Attorney-General's Department commented that the recurrent funding was not
terminated or cancelled; rather, the government had agreed to not continue this
funding at the expiration of the current funding arrangement, that is, 30 June
The Attorney-General's Department commented that the defunding decision
came from a need to achieve a set amount of savings in the legal assistance
program, and that the EDOs had been identified as being a 'lesser priority' for
funding. The EDOs were notified of this rationale for defunding.
The decision to defund the EDOs was relayed to them firstly through a
phone call, and then in writing. An example of the letters is provided at Appendix
3. The letter from the Attorney-General's Department to the EDOs states that:
In this time of fiscal constraint, the Australian Government
sees the provision of enhanced frontline legal services to disadvantaged
members of the community as the first priority in facilitating access to
Further, the letter sets out that the two streams of funding received by
the EDOs will cease. The letter states that the government has decided to:
- not extend
the Service Agreement beyond its current term, which is due to expire on 30
June 2014, and
- cancel the
Grant Agreement in accordance with subclause 19.1 of the General Grant
Conditions (the Conditions), which form part of the Grant Agreement (see
paragraph headed 'Scope of this Agreement' of the Grant Details).
With respect to the cancellation of the Grant Agreement, we
advise that due to this change in government policy the Commonwealth is
cancelling the Grant Agreement effective immediately.
On 26 March 2015, the Attorney-General announced a reversal of cuts to
funding for legal aid providers, but specifically excluded the EDOs:
After considerable consultation with State and Territory
Governments and service providers, it has been decided there will be no
reduction in Commonwealth funding to Legal Aid Commissions, Community Legal
Centres (except Environmental Defenders Offices) and Indigenous legal
assistance for the next two years.
Response to defunding of EDOs
Many submitters expressed concern at the defunding of EDOs. The
Australian Conservation Foundation stated:
Defunding the EDOs means Australians are less able to speak
up for themselves, ensure that the environments they value are looked after,
and keep political decision makers honest.
Another group of submitters provided the following view on the defunding
of the EDOs:
It is appalling that the Abbott government allowed the mining
industry lobby to persuade it to cut funding to the Environmental Defenders
Office. The EDO is the only legal service dedicated to ensuring that decisions
relating to the environment are lawful and fair, and to assist the community in
understanding their legal obligations towards the environment and in abiding by
planning regulatory frameworks. The role of the EDO in making submissions
relating to proposed legislation is invaluable as they have years of
experience, scientific and legal knowledge. That knowledge is unique and of
enormous assistance to the governments of the day in their legislative role.
In cutting funding for the EDO the Abbott government has
shown great naivety and cynicism and frankly, has displayed a clear disdain for
people who will live longer than, or after, them. They are a government of
aging men who demonstrably care nothing about the planet, its humanity or its creatures.
They are opportunists for themselves personally and their corporate cohorts.
They have mounted an unending attack upon the environment from every available
Reasons for defunding
The EDOs disagreed with the argument for defunding put forward by the
Attorney-General's Department in its letter to the EDOs, which stated that only
frontline legal services would receive funding. The EDO in Western Australia (EDOWA)
argued that 'the delivery of frontline legal services for disadvantaged
Australians is precisely what EDOs provide'.
EDOWA noted that its clients include Indigenous Australians seeking to
protect traditional lands from mining, and local farmers and landowners. EDOWA
argued that they provide a unique service:
These clients often cannot get specialised legal advice and representation on environmental law issues elsewhere. In many instances, EDOs are the only legal
service providers to which such citizens can turn for help in understanding
their rights and the options available to them to protect their health,
prosperity and the environment.
Other submitters also noted the important work undertaken by EDOs. The
group of environmental organisations, for example, stated:
The Australian Network of Environmental Defenders Offices
(ANEDO) has provided important public interest environment law services for
over 25 years, when the NSW office was first established. ANEDO plays an
important role in providing legal advice to the community on public interest
environment matters, and representing third parties in court proceedings. The
ANEDO offices are made up of lawyers, scientists and other professionals and
support staff, who provide professional, expert and independent legal advice to
individuals and community groups within clear public interest guidelines.
ANEDO's work has helped to protect coastal areas, private
land, rivers and catchments, Aboriginal culture and land, and native flora and
fauna, signifying the broad extent to which the organisation affects local
people and communities.
In evidence to the committee, the Attorney-General's Department
indicated that it was not aware of any analysis of the work of EDOs undertaken
prior to the MYEFO announcement. Rather, the only analysis was 'about options
that might be available to the government in achieving the financial savings
that it was requiring'.
In answer to a question on notice in relation to this matter, the
Attorney-General's Department added:
The department provided analysis and advice on how the
required level of savings could be achieved. This included the fact that
removing all EDO funding would deliver a total of $11.25 million over four
The EDOs noted that the decision to defund the EDOs was made before the
completion of the Productivity Commission's review of access to justice.
The EDOs also commented on the reinstatement of funding for community
legal centres which specifically excluded EDOs. Ms Rachel Walmsley, EDO NSW, noted
that the EDOs 'are very happy that the funding has been restored more broadly
to the sector because community legal centres do really important work',
however, she indicated that no justification for the continued defunding of
EDOs had been provided. The EDOs had sought to meet the Attorney-General to
discuss this, however, they had not been able to do so.
It was also suggested in evidence that the defunding of EDOs may have
been influenced by factors other than the need to find financial savings. Ms Jo-Anne
Bragg, EDO Queensland, commented:
In terms of the earlier question, as to why EDOs had been
defunded, I might venture that we are often very successful at helping
clients use the law to protect the environment and to protect communities. Many
people applaud that as part of access to justice in a fair and democratic
society, but certain interest groups might prefer that communities did not have
access to those sorts of legal resources. We feel we are a very important part
of the environmental access to justice for communities across the country.
Ms Walmsley concluded that the defunding, and then failure to reinstate
funding for EDOs, sent two signals:
It is saying that environmental protection is somehow an
indulgence or a luxury rather than [actually fundamental] to Australia's economy,
society and long-term wellbeing. Secondly, it sends a message that if
communities wish to protect their environment against powerful interests
including breaches and wrongful decision making that they are on their own.
Impact of defunding of EDOs
The committee received evidence on the consequences that the defunding
of the EDOs would have for the organisations and the work that they undertake.
The EDOs of Australia pointed to the importance of stable funding for the
long-term delivery of services. It stated that:
Recurrent funding has been the only secure basis for forward
planning and stable, long‐term
service delivery. In the absence of a stable funding source, offices are
required to dedicate considerable time and resources in order to generate income,
often at the expense of direct service delivery.
Without recurrent funding, the EDOs are facing significant financial
constraints which have implications for staffing. The EDOs of Australia
indicated that staffing numbers are likely to decrease significantly in the
next 12 months as the impact of the funding cuts lead to office closures and
EDOWA also commented on changes to staff and stated in its Annual Report that
...had to abandon the idea of a northern office and reduce
planned staff...defunding left the EDOWA with 1.4 Full Time Equivalent lawyers
rather than the 2.6 FTE lawyers planned for February 2014.
These financial constraints have been exacerbated in some jurisdictions
by decreases in state and territory governments funding to the EDOs. For
example, funding for the EDOWA was cut from the state budget, as announced in
May, with funding reallocated to the Employment Law Centre.
State government funding for the EDOs in the Northern Territory and South
Australia has been withdrawn and these offices face imminent closure, while the
Tasmanian and Australian Capital Territory offices face closure by the end of
The financial situation of EDONT was highlighted in its 2014 Annual
Report which stated:
Firstly, we feel it important to bring the reader's attention
to the fact the EDONT's auditor's report highlights "the existence of
material uncertainty over the Association's ability to continue as a going
concern and therefore may be unable to realise its assets and discharge its
liabilities in the normal course of business". This is of course a direct
result of the Federal Government's withdrawal of the EDONT's funding and it is
well recognised that without alternative sources of funding, the EDONT is
likely to close at the end of this coming financial year.
EDONT was scheduled to close its doors on 30 June 2015 in the absence of
additional funding. The EDONT indicated that it had attempted to raise funding
from the Northern Territory Government without success. The Law Society
Northern Territory had provided funding and some $10,000 was raised through a
crowd-funding campaign prior to Christmas 2014. Nevertheless, it appears that
the office is not sustainable after June 2015.
Ms Jess Feehely, EDO Tasmania, commented that the EDOs in other
jurisdictions 'have slightly more positive outlooks based on funding they have
been able to continue to receive from their state governments'.
EDO Queensland for example, commented that it was hoping to get state funding and
it was surviving on temporary project funding and public donations. As a
consequence, EDO Queensland has had to severely restrict the number and detail
of advice it provides and has not been able to do its normal rural outreach and
Environmental and community
implications of defunding
The impact of environmental harm on communities was noted by the
The rationales for government support for environmental
matters are well recognised. The impact of activities or actions that cause
environmental harm typically extend beyond a single individual to the broader
community. For example, inappropriate
developments by governments or the private sector that reduce air quality,
water quality or the amenity of an area can impose costs on all residents in
that area. Costs might include poor health outcomes or decreased land values.
The EDO office in Northern Queensland highlighted its role in providing
a voice for Australian communities through access to justice as well as, more
broadly, the protection of the environment. According to it, the defunding of
Defunding the EDOs means Australian communities are less able
to speak up for themselves, less able to ensure that the environments they
value are looked after, and less able to keep political decision makers honest.
The impact that defunding the EDOs can have on access to justice has
been noted by the EDOs of Australia. According to the EDOs, environmental laws
'can help to address social disadvantage and fairness in our legal system', as:
...environmental issues disproportionately affect members of
marginalised or lower socio-economic groups who are exposed to inappropriate
developments which lower air quality, water quality or the amenity of an area.
This may have flow-on effects leading to ill-health, reduced land values,
disadvantage and disempowerment.
Ms Walmsley, EDO NSW, added:
As recently recognised by the Productivity Commission, we
have a very crucial role in terms of access to environmental justice. Without
EDOs there really is no community legal centre, no government service that
actually provides the kind of information and assistance that we provide. As I
was saying in the opening statement, our clients include a really diverse
cross-section. We have farmers, Aboriginal clients and governments who come to
us for advice. We are really the only independent non-government source of
information on environmental law and we are crucial for access to justice.
The need for ensuring access to justice on environmental law issues was
highlighted by EDO North Queensland, which commented that 'this is particularly
serious when many are suffering the consequences of the streamlined approvals
process created by the Queensland government's aggressive campaign of slashing
This view was supported by other submitters with the network of
state-level conservation councils and organisations asserting that:
Without ANEDO's [Australian
Network of Environmental Defenders Offices] legal services many Australians could not afford to get legal advice or mount a legitimate legal challenge against large companies
or governments over major
development projects which threaten their
local communities and environment.
Ms Kate Watson also argued that the EDOs perform a valuable service for
the Australian community:
Apart from the services to the community, the EDO is also an
important institution of our democracy. For a government to withdraw the means
by which the community can lawfully question or challenge decisions by that
government about our environment takes us fast in a direction which is
Ms Elizabeth Quinn, Director, Community Legal Services Section in the
Attorney-General's Department, noted that no replacement service to provide
free legal advice on environmental matters received Commonwealth funding. 
However, Ms Quinn expressed the view that there would be nothing to 'prevent a
generalist community legal centre from assisting someone'.
Frivolous or tenuous litigation
A further matter raised in evidence was the role of the EDOs in reducing
frivolous or tenuous litigation. For example, Ms Watson stated:
Both the Abbott government and the New South Wales state
government failed to recognise that EDOs not only serve the community and the
environment; they also save the government money by advising potential
litigants about the law, their prospects and avenues other than courts that
they can use to bring attention to any grievances. EDOs thereby unclog the
courts of unrepresented individuals and communities who would otherwise take
court time to run cases that were either not well founded or had no basis in
The EDOs also argued that they play 'a critical role in reducing the
number of frivolous or tenuous litigation activities being pursued, and in
improving the efficiency of matters which do proceed'.
The EDOs highlighted the process they use when determining whether to
proceed with a case. They stated that they:
...undertake a rigorous assessment of prospects (often in
consultation with an experienced barrister), and ensure that clients are aware
of both the potential risks and the evidentiary burden involved in the
The EDOs pointed out that while they provide advice on a number of
matters, they run very few cases. They noted that in 2012–13, they provided 1,288
phone advices and 193 written advices, but ran only 19 public interest cases.
The Productivity Commission noted, in its 2014 report, that 'in the past
five years, no cases in which EDO offices were engaged have been dismissed on
the basis that the case was frivolous or vexatious'.
The committee acknowledges the vitally important role that EDOs have
undertaken over many years. The EDOs have empowered communities through
education about their legal rights regarding the environment and the provision
of advice on legal matters.
The EDOs also play a significant role in providing access to justice
where it is in the public interest for environmental matters to be pursued by
those who cannot afford private legal representation. By providing this
important legal assistance, the EDOs serve to reduce frivolous litigation by
taking very few matters to court. The committee notes the finding of the
Productivity Commission that, in the past five years, no cases in which the
EDOs were engaged were dismissed on the grounds that they were frivolous or
The committee is concerned that without the EDOs, communities and
individuals across Australia will not be able to access legal assistance or
legal advice on matters that directly affect their local environment.
The committee heard that the future is bleak for the EDOs. Without
reinstatement of Commonwealth funding, all EDO offices now face an uncertain
future with some facing closure or are reducing the services they provide. The
environment is a public good and those who seek to protect it should not have
to rely on the donations or indeed crowd-funding.
The reasons given by the government for the defunding of the primary
avenue communities have to access environmental legal aid are not compelling,
particularly as there appears to have been no analysis by the
Attorney-General's Department on the environmental and social impact of the
defunding. Further, no analysis has been undertaken on the impact the defunding
will have on the court system, as the EDOs have acted as a filter for frivolous
or vexatious litigation.
While acknowledging the financial constraints faced by the Commonwealth
government, the committee considers that the long-term cost to communities and
to the environment will far outweigh the short-term financial gains achieved by
the defunding of the EDOs.
The committee recommends that the Commonwealth Government establish new
funding agreements for the Environmental Defenders Offices which reinstate the
recurrent funding previously provided.
Senator Anne Urquhart
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