Stakeholders in the community – including project proponents,
landholders, community associations or environmental non-government
organisations – are vital players in the operation of the legislation. Maintaining
good relationships and effective communication is an important part of the department's
task in ensuring the Act operates well – a task to which they have recently
committed further resources.
The committee heard evidence on a range of issues regarding the roles of
stakeholders in the operation of the Act, particularly in relation to:
Whether proponents are referring all actions that should be being
assessed under the Act;
Whether proponents should be able to withdraw and re-submit a
proposal, and under what conditions;
The effects of assessment time frames under the Act on ensuring
effective public participation;
The costs to community groups of litigation; and
The need to ensure parties affected by decisions under the Act
can access independent reviews of decisions.
Are all projects that need to be referred getting referred?
Proponents intending to undertake an action which will have or is likely
to have a significant impact on a matter of national environmental significance
are required to seek approval for that action under the Act. This includes
activities undertaken by landholders on privately owned land.
The committee heard that some proponents remain unclear about when and
for which actions they must seek approval under the Act. This lack of
understanding may have resulted in some actions that require approval not being
referred and vice versa. Land & Environment Planning stated:
Development proponents common lack an understanding of the
responsibilities under the Act. It appears that in many cases there are actions
which would have a significant effect on matters of national environmental
significance which are not referred to the Commonwealth, particularly in
relation to land development and smaller projects.
The agricultural sector was specifically cited as one where there
continues to be significant confusion about the application of the Act and the
need for referral:
As the Productivity Commission has stated in relation to the
agricultural sector, “In terms of preventing activities, or of requiring activities
to undergo the assessment and approval process, the EPBC Act to date has had
little direct impact on the agricultural sector.” [Productivity Commission, Impacts
of Native Vegetation and Biodiversity Regulations, Report No 29 (2004)].
The referral figures support this view in 06-07 the department received 3
referrals for the agriculture and forestry category, all of which were found to
be not controlled actions.
Routine activities undertaken on farms may require referral under the
Act, depending on their impact on matters of national environmental
significance. However, sections 43A and 43B of the Act exempt certain actions
from requiring assessment and approval. Section 43A exempts actions with prior
authorisation under a law of the Australian Government, a state or
self-governing territory (granted before 16 July 2000) from assessment and
approval under the Act.
For example, 'an activity that could be exempted under the prior authorisation
provision is cattle grazing in accordance with a crown land licence issued
under the Victorian Land Act 1958'.
Section 43B provides for 'actions that are lawful continuations of use of land'
to be exempt from assessment and approval, so long as the action commenced
prior to 16 July 2000, the land use is lawful and the action has continued in
the same location without enlargement, expansion or intensification.
An example of an action exempt under section 43B is 'continuing cropping and
Confusion regarding these provisions appears to have arisen specifically
around the enlargement, expansion or intensification of farming practices. The NFF
As NFF understands it, the continuing use provisions state that
when a farmer continues to use his land as it has been historically managed
then there is no requirement for an assessment process. However, this
provision does not cover intensification or expansion of the historic farming
practice, e.g. increasing the number of livestock being grazed or expansion of
the area traditionally cropped.
The NFF went on to explain:
Where a farmer has significant biodiversity on his or her place
and those species, for example, are listed under the act or the area is within
an ecological community that is threatened under the act, the farmer has to
consider how increasing cropping or increasing stocking rates of livestock may
impact on those species and needs to seek approval under the act from the
department. It is that simple. First they have to acknowledge that the act is
in existence and the understanding within our farming community is quite low,
so there is a communication issue. They also have to understand what threatened
species and what ecological communities of value are on their place. Where
there are none of value, they do not need to seek approval. But where their
property is an area that, for example, has threatened species then they need to
seek approval under the act. It is not clear to farmers where those continuous
use provisions kick in and where they do not.
The committee is aware that ensuring effective regulation of the impacts
of agriculture and land clearing under the Act is a long-standing issue for
both the department and stakeholders. The ANAO in its 2002-03 audit, examining
this issue, remarked:
The most surprising figure is the low level of referrals from
agriculture and forestry. Given the impact of land clearing on listed
threatened species it could be expected that there would be a higher number of
referrals in this area. The exemptions relating to existing activities prior to
the Act’s introduction and where Regional Forest Agreements are in place might
explain this to some extent.
In recognition of the impact of the Act on farmers in particular, the department
has an out-placed Resource Liaison Officer based with the NFF to provide advice
to the agricultural sector on the application of the Act.
This arrangement was in place at the time of the 2002–03 ANAO audit,
and is continuing. The NFF commented on the need for and usefulness of this
NFF is grateful to DEWHA for the provision of this service for
Australian farmers. With the recent cut back in funding for on-ground regional
based NRM facilitators (Landcare in particular), the role of the out posted
Officer will be increasingly important to ensure that farmers are aware of
their responsibilities under the EPBC Act.
ANAO, however, in 2006–07 noted that referrals from the agricultural
sector have not increased, despite land clearing (including illegal clearing)
being known to be a significant environmental problem:
Since 2002–03, referrals from the rural sector have continued to
be low. Referrals from the agriculture sector were 2.8 per cent of total
referrals, or 46 out of 1 630 referrals to June 2006.
The committee also notes that the ANAO was critical of the department's capacity
to address the substantive underlying problems with referrals in relation to
agriculture and land clearing:
At the national level, the department has provided an out-posted
officer on secondment to the National Farmers Federation since 2002–03. The
out-posted officer provides a range of services such as advice on aspects of
the Act, assistance with referrals, guides facts sheets, information and
training to relevant stakeholders. This is an important initiative to promote
the Act to potential proponents. Some 92 presentations (involving 1,380 farmers
from 920 farm businesses) have been conducted since 2002. This represents
contact with approximately one per cent of the target audience. Despite the
considerable efforts being made, the current resource allocation is
insufficient to fully engage all relevant rural and regional stakeholders
throughout Australia – especially in the absence of the EPBC Unit which
previously undertook much of the work in this area.
It was suggested to the committee that the out-placement of departmental
officers would be useful to other sectors. The MCA recommended that a seconded
officer be provided, based on the NFF model, 'to those industry's [sic] that
intersect significantly with the Act's implementation, to facilitate better
advice on whether a referral is really required and where impact assessment
efforts should be targeted'.
The department advised the committee that field officers are also
located in Perth and Hobart.
These field officers have been placed on-ground to assist with specific matters
– in Perth, the field officer assists with applications associated with Perth's
urban growth; in Hobart, the field officer assists with work associated with
the proposed Gunns pulp mill development.
The committee recognises the assistance provided by the department
out-placed officer to the agricultural sector, and the value the sector places
on this service. The committee also notes the placement of field officers in
Perth and Hobart to provide assistance with identified areas of increased
workload under the Act. The committee accepts the concerns expressed through
both ANAO audits regarding the adequacy of referrals in the area of agriculture
and land clearing. The committee hopes that the increase in resources already received
by the department; the department's plan to implement a communications
strategy; and the additional funding recommended in chapter three of this
report, will collectively ensure improvements in this area.
Withdrawal and re-submission of proposals
As it currently stands, the Act does not prevent a proponent who has
withdrawn a referral from subsequently re-submitting that same proposal:
Subject to subsection (2), a
has referred a proposal to take an action to the
Minister under section 68; or
is named as the person proposing to take an action
in a proposal that is referred to the Minister under section 69 or 71;
may withdraw the referral, by written notice to the
The referral cannot be withdrawn
after the Minister has decided, under Part 9, whether or not to approve the
taking of the action.
If the Minister receives a notice
withdrawing the referral, the Minister must publish a notice of the withdrawal
of the referral in accordance with the regulations.
If the referral is withdrawn, the
provisions of this Chapter that would, apart from this subsection, have applied
to the action cease to apply to the action.
Mr Michael Stokes described the withdrawal and subsequent re-submission
of the pulp mill proposal by Gunns and raised the question of whether 'a
proponent who has withdrawn from the selected assessment [should] have the
right to withdraw the referral and restart the process, effectively requiring
the minister to reconsider the original choice of assessment process'.
Mr Stokes stated:
Common sense suggests that if the Act permits such strategic
withdrawals, the appropriate decision for the minister would be to require that
the proposal be re-submitted to the original assessment, which would then
continue from where it left off. But it is not clear that such a decision would
be valid. The Act is silent on the issue of how the re-referral of a withdrawn
referral is to be dealt with.
In light of the Full Court's decision in the Wilderness Society Case that
there were no restrictions to prevent Gunns from re-submitting the proposed
pulp mill after having withdrawn the same referral, Mr Stokes suggested that
proponents should not have an unlimited right to withdraw and re-refer a
proposal. It was recommended to the committee that:
...it is likely that the EPBCA intended that the proponent should
not be able to withdraw and re-refer a proposal for no other reason than to
avoid the limits on the minister's powers to reconsider an earlier decision
that the proposal was a controlled action or that it was to be assessed in one
way rather than another...Therefore, s 170C, which permits a proponent of a
referral of an action for assessment and approval to withdraw the referral,
should make it clear that a proponent who withdraws a referral does not have an
unqualified right to re-refer the proposal. There are a number of ways in which
this could be done. One is to impose a time limit, for example of two years in
which a proponent who withdrew a referral would not be able to re-refer substantially
the same proposal. Such time limits are common in development control
legislation. Another would be to prevent the Minister from considering a
re-referral of a withdrawn proposal where a major reason for the withdrawal and
re-referral was to force the Minister to reconsider whether the proposal was a
controlled action or the proposed method of assessment.
The committee notes that the efficacy of restrictions such as those
suggested by Mr Stokes would rely in part on the definition of 'substantially
the same'. In other jurisdictions this has been determined in the courts:
I took those ideas out of state planning legislation, where
quite often you cannot resubmit substantially the same proposal. You are quite
right, there has been quite a lot of litigation about when a proposal is
'substantially the same'. I do not know that we can define 'substantially'. The
important thing from the EPBC Act is that what is being proposed is fairly
similar, and the impacts are likely to be similar – nothing has really changed
with respect to those impacts on the environment, because that is what we are
concerned about here.
Whilst acknowledging that the extent to which proposals are determined
to be 'substantially the same' may in part be determined by the courts, the
committee believes that limiting proponents' ability to withdraw and re-refer
the same proposal warrants consideration. Appropriate limitations on a
proponent's right to withdraw and re-refer a proposal would prevent the
proponent from seeking a strategic advantage whereby their proposal can avoid
rigorous scrutiny under the Act.
Public participation: assessment timeframes; providing information
The Act provides for interested members of the public to provide comment
on matters such as referrals, assessments, nominations for listing, recovery
plans and threat abatement plans. Typically, a notification and relevant
documents are made available via the DEWHA website. The period for public
comment is usually 10 or 30 business days.
The committee heard from numerous submitters that the current timeframes
provided for public comment prohibit meaningful public engagement and that
extension of these periods would be appropriate:
Experience shows that the lack of time available for public
comment on referrals has hindered effective community engagement in the
administrative processes of the EPBC Act. It is suggested that 3 - 4 weeks for
comment is more reasonable than the present arrangement.
The ACF commented:
Minimum public consultation periods mandated by the EPBC Act can
often be too short to enable meaningful public engagement in EIA processes
conducted under the EPBC Act. This is particularly the case where the action
under assessment is large-scale and impacts upon communities that are socially
marginalised and / or dispersed over large geographical areas...ACF considers
that statutory minimum time frames mandated for key steps in EIA processes
conducted under the EPBC Act should be extended to enable meaningful public
participation in these processes. In ACF's view, a legislatively mandated
minimum period of 90 days for more complex processes is required, with the
ability for longer periods to be prescribed where necessary.
Submitters were particularly critical of the 10 days provided for public
comment on referrals, recommending that the time frame be extended:
The process of notification of referrals and the 10 day turn
around for response is inadequate for public participation in commenting on the
impacts of projects submitted for referral. This period needs to be extended to
Bird Observation and Conservation Australia (BOCA) made a similar
request. As well as favouring a longer comment period, BOCA also noted that it
can take time for an organisation simply to establish whether a referral is of interest
to them: 'Matters listed on the DEWHA website provide little clue as to the
major concerns or issues that have triggered the referral'.
BOCA was also critical of the effects of the time frame on the reliability of
In many instances BOCA must rely on local knowledge and records
to support or refute the claims of proponents and their representatives. The
collation and analysis of relevant information (both published and local) is
time consuming, often requiring much longer than the relevant 10 day period for
adequate analysis and submission preparation.
Submitters suggested various extended periods for public comment. These
ranged from approximately 28 through to 90 days 'for more complex processes'.
There were other complaints about documentation of the assessment
process. When a decision is made that the manner of assessment will be by
accredited assessment process, it is not always clear from the published notice
of decision what that assessment process actually involves. NPAC commented:
There is no requirement to publish the details of the assessment
process. The decision notification documents for referrals 2008/3948, 2007/3809
and 2008/3960 do not state what the accredited assessment process is. The
public is left with no idea as to how these referrals are to be assessed.
The committee notes that section 91 of the Act does appear to require
details to be published; it states in part:
If the Minister decided that the relevant impacts of the action
are to be assessed by an accredited assessment process, the written notice and
the published notice must specify the process.
The committee examined the three examples and agreed that there did
appear to be limited information accessible regarding the assessment approach
through the department's online database.
It remains unclear to the committee to what extent the department is
able to take into consideration information provided to it by members of the
public. Public comment both engages stakeholders in EPBC processes and provides
an opportunity for the department to be presented with information, relevant to
a referral or other public notice, of which it may have been unaware. For
example, the committee notes that the department may be unfamiliar with a
specific location(s) and public comment provides a mechanism by which
potentially valuable 'local knowledge' can be obtained.
The ANAO noted examples where information provided to the department by
members of the public had been significant in detecting and addressing possible
impacts on matters of national environmental significance.
In light of earlier discussion, the committee believes it is significant that
both cases involved habitat destruction.
Public input may also be important in identifying incorrect information
that might be provided by proponents. The committee notes that section 489 of
the Act makes it an offence to provide false or misleading information in order
to obtain approval or a permit under the Act.
The Act thus places responsibility
on the proponent to provide accurate information. However, where this is
contested by comments provided by a member of the public (an individual or
organisation), and is deemed to be neither frivolous nor vexatious, this should
be a source for concern. The committee understands there is a role for the department
to investigate the accuracy of information provided to it where there is discrepancy
between that provided by the proponent and that received during public comment.
Given the limited resources with which the department operates, the committee
was unsure of the extent to which this takes place.
The costs of litigation
Public interest litigation represents a means by which third parties,
usually conservation groups or other non-government organisations, can bring
alleged breaches of the Act before the courts. Public interest litigation is
considered by some experts to play an important role as 'surrogate regulation'
in protecting the environment.
The committee heard evidence that the costs associated with litigation,
most notably the threat of adverse costs orders, orders for security for costs
and undertakings for damages, are a prohibitive barrier to those wishing to
challenge or seeking to enforce decisions made under the Act:
Under current rules, costs generally "follow the
event" i.e. at the conclusion of the court proceedings, an award can be
made that the unsuccessful party bear both its own legal costs plus the costs
of the other parties to the litigation. Furthermore, a party to litigation may
apply to the court, and be granted, an order requiring the application to
provide security for that party's costs or (in the case of an application of an
interlocutory injunction) an undertaking for damages.
The threat of these orders operates as a powerful disincentive
to individuals and organisations wishing to challenge decisions made under the
EPBC Act or apply for an injunction to enforce it. Individuals or community
organisations face financially ruinous orders for costs in the event that they
lose expensive proceedings conducted in the Federal Court of Australia.
Lawyers for Forests went further, stating:
The right to challenge decisions made under the Act is being
significantly undermined by matters relating to costs, for example the threat
of security for costs against applicants and costs being ordered on an
NPAC was unhappy about the apparent inconsistency in determinations
awarding costs, citing a number of cases brought before the Federal Court:
Theses cases illustrate that there is no clear rule about when
cost will follow or the quantum of those costs. Yet all the judgements
recognise that these cases are brought in the public interest on issues that a
significant proportion of the community supports, have an important role in
defining the application of the Act and merited judicial consideration. Reform
of the EPBC Act is needed to address the costs issue...
Numerous submitters recommended changes to the Act to limit the extent
to which applicants are exposed to costs associated with litigation. ANEDO's
recommendations were representative of these:
The insertion of a provision into
the Act that allows the court to consider granting an order that each party to
a proceeding bear their own costs.
The insertion of a provision into
the Act that allows the court to consider granting a protective costs order to
a party to the proceeding (or include public interest costs orders in the Federal
The insertion of a provision into
the Act allowing public interest parties to apply for a maximum costs order.
The insertion of a provision into
the Act that prevents a party from making an application for security costs
against a public interest applicant.
Reinstate the repealed section 478
into the Act in its original form.
The 2006 amendments to the Act repealed section 478 'No undertakings as
to damages'. Section 478 provided:
The Federal Court is not to require an applicant for an
injunction to give an undertaking as to damages as a condition of granting an
The repeal of section 478 has exposed applicants to the possibility of
having to undertake to pay costs for potential damages as a requirement of the
injunction sought being granted.
The committee heard that amending the Act to protect applicants from the
costs associated with litigation was unlikely to open the 'floodgate' on
There is no evidence of that vexatious nature of proceedings,
and there is no evidence that, if you open up court systems, it is the
floodgates opening, and people will start running through them. We have had
open standing in New South Wales since 1979, nearly 30 years, and there have
been only a handful of matters brought by third parties – by 'third parties' I
mean any person who does not have a direct material or financial interest –
because one simply does not go to court lightly. We are in the business of
going to court, and we do not go to court lightly.
Dr Chris McGrath agreed with this position:
I fully support a costs provision being there in appropriate cases
where a respondent has incurred costs because some mad person has run a case,
but that is rare. If we want third parties involved – and, as I have argued in
my article, I think there is a really important role for third parties in
enforcing the act – we really need to support them and indicate to the Federal
Court that costs should not be awarded against them and that if there is a
valid case and if it is well run they should be allowed to not risk bankruptcy.
Evidence provided by the department certainly suggests that there is
little litigation initiated under the Act – either by third parties, proponents
of actions, or permit applicants. In the approximately eight years since the
Act commenced, there have been just eight applications to courts for injunctions,
21 applications for judicial review of decisions, and 12 applications for
merits reviews of decisions.
When it is considered that this is Australia's main national environmental
legislation, containing 86 criminal and 17 civil penalty provisions
as well as third party standing provisions, this appears to be an extremely low
level of litigation.
In addition to reinstating section 478 and inserting other provisions in
the Act to protect applicants from the costs of litigation, some submitters
recommended to the committee that legal aid be established to assist public
interest litigants in running their cases.
Administrative review of decisions
According the Commonwealth Administrative Review Council (ARC),
'the community is entitled to expect that public administrators will act
lawfully, rationally, openly and efficiently in their dealings with the
Indeed, 'public acceptance of Government and the roles of officials depend upon
trust and confidence founded upon the administration being held accountable for
In basic terms, 'administrative review' refers to processes by which a party
whose interests are affected by a government administrative decision can
challenge that decision (or the failure to make a decision) via internal review
mechanisms or in a court or tribunal. According to the ARC,
Expressed in its simplest form, administrative review has a
to improve the quality, efficiency
and effectiveness of government decision-making generally; and
to enable people to test the
legality and the merits of decisions that affect them.
Key elements of the Commonwealth administrative review system designed
to safeguard the rights and interests of people and corporations in their
dealings with government agencies include:
Judicial review under the Administrative Decisions (Judicial
Review) Act 1977 ('the ADJR Act') of the lawfulness of most statutory
Merits review of statutory decisions by independent tribunals
such as the Administrative Appeals Tribunal (AAT), or internal merits view by
the agency responsible for the decision;
Investigation by the Ombudsman of complaints of
Access to information via the Freedom of Information Act 1982,
and the regulation of the use the use and storage of information about
individuals through the Privacy Act 1988 and Archives Act 1983.
Stakeholders provided the committee with a number of views in relation
to the current system of administrative review of decisions under the EPBC Act,
particularly judicial and merits review provisions. Some of the issues raised
are discussed below.
Judicial Review and the EPBC Act
Along with most other Commonwealth legislation, the EPBC Act is subject
to judicial review provisions. Thus, an "interested person" may apply
to the Federal Court for judicial review of an administrative decision made
under the Act. As the ARC notes, the scope of judicial review is limited to
whether or not a decision is correct in law. Thus, it does not involve
re-visiting the merits of a case. Rather, the purpose of judicial review is to
ensure that the decision maker acted lawfully by not exceeding their authority
and followed the correct legal procedures (including considering all relevant
Where a decision is found to have been affected by legal error, the
power of the court is generally limited to setting the decision aside and
referring the matter back to the decision maker for reconsideration according
to the law. The ADJR Act sets out the procedure by which a 'person aggrieved by
a decision', or the imposing of a condition or requirement, may apply to the
Federal Court for an order for review, the grounds for a review, the relief
that the court can provide, and the procedure by which a person can obtain a
written statement of reasons for a decision prior to commencing action.
Section 487 of the EPBC Act extends the meaning of 'persons
aggrieved' under the ADJR Act to include persons or organisations which are
engaged in activities in Australia for protection, conservation or research
into the environment during the previous two years. In other words, the EPBC
Act extends the right to seek judicial review (also known as standing)
to include third parties, including some community organisations.
The department stated that 'since the commencement of the EPBC Act there
have been 21 applications for judicial review of decisions made under the EPBC
Act (not including cases on appeal)... in the majority of those cases, the
decision making process employed under the EPBC Act has been upheld'.
While judicial review has the potential to play a more significant role
environmental law, its cost may account for the lack of public interest
In 2007–08, ten court actions were commenced seeking judicial review of
decisions made by the Minister under the Act.
At least two of these court actions led to decisions being set aside. In the
case of Phosphate Resources Ltd v Minister for the Environment, Heritage,
Water and the Arts (no. 2)  (FCA 1521), the decision by the then Minister,
the Hon Malcolm Turnbull MP, to refuse approval for the expansion of phosphate
mining operations on Christmas Island was set aside due to two errors contained
in the departmental briefing provided prior to the Minister's decision (in
particular, the briefing did not sufficiently call the Minister's attention to
the mandatory requirement to consider the proponent's Environmental Impact
In the case of Lansen v Minister for Environment and Heritage
 (FCAFC 189), the decision of the then Minister, the Hon Ian Campbell, to
approve the change from underground to pit mining at McArthur River in the
Northern Territory (requiring the diversion of the river) was set aside by the
Federal Court. The reason for the decision was the perceived failure to
consider any conditions imposed by the Northern Territory Government when
deciding to impose conditions on approval for the action.
It should be emphasised that, because these are examples of judicial
review, the decisions were set aside on legal grounds, and made no judgement as
to whether the decision was the 'preferable' one. As one analysis of the
Phosphate Resources case put it, 'any "replacement" decision on the
expansion project may turn out to be no different from the original April 2007
In this light, it is worth noting that the current Minister for the
Environment, Heritage and the Arts, Hon Peter Garrett AM MP, has re-approved
the proposed action at McArthur River on 20 February 2009, albeit with
One potential avenue for judicial review is to consider the
'reasonableness' of administrative decisions. Mr Andrew Walker noted:
The Minister’s decision is not really reviewable, except on
administrative law grounds, including the main ground, that the decision was
unreasonable. The test for ascertaining whether this is the case is the
so-called Wednesbury unreasonableness test. Under the Wednesbury
unreasonableness test, an applicant for review must establish that, in summary,
no reasonable Minister could make such a decision in the circumstances. That is
pretty hard to establish, given the Minister's discretionary powers under the
However, this ground for appeal would have to be justified
on the basis of the particularities of the case. Even if a court held that the
decision was 'unreasonable', it does not necessarily follow that remitting the
case to the decision maker for re-consideration, would yield a 'superior'
result. Given the difficulties indicated by Mr Walker with this approach,
several stakeholders have claimed there is a need for specific merits review
procedures to be adopted. This possibility is discussed further in the section
Merits review of decisions
According to the ARC, 'the purpose of a merits review action is to
decide whether the decision which is being challenged was the 'correct and
preferable' decision. If not, a new decision can ordinarily be substituted'.
Merits review is generally undertaken by administrative tribunals, the
principal of which is the AAT Unlike judicial review, merits review rights must
be specifically assigned by legislation (usually by the legislation under which
the decision is made).
The Act allows for merits review by the AAT in certain specific
instances, including of decisions relating to:
Permits for activities affecting listed threatened species or
ecological communities, listed migratory species, listed marine species and
citations under Part 13;
Permits under Part 13A; and
Advice on whether an action would contravene a conservation order
under Part 17.
In addition, the Act provides stakeholders with mechanisms for internal
review of some decisions. For example, section 78 of the Act allows a Minister
to revoke and substitute decisions relating to approvals of controlled actions
on numerous grounds, including the availability of new information or changed
The department noted in its submission that there had been 12
applications for merits review of decisions under the Act.
The AAT website lists 11 cases since 1 January 2006, dealing with 7
separate decisions made under the Act. All cases listed since 2006 relate to
decisions made under Part 13A of the Act, including appeals against decisions
to approve wildlife trade management plans or operations (under sections 303FO
or 303FN), to withhold 'exceptional circumstances' permits for export of living
Australian wildlife specimens (under section 303GB) or to grant permits for
import of species from overseas (under section 303CG).
All except two of the cases since January 2006 were brought by third parties
Some of these cases involved decisions made by the Minister personally
(e.g. the decision of the AAT to vary permit conditions for the import of live
elephants from Thailand for Australian zoos in December 2005). As a result of
amendments to the Act in 2006, AAT review of decisions made by the Minister
personally was removed. The power is now confined to review of decisions made
by a delegate of the minister (meaning a senior official in the Department of
Environment, Water, Heritage and the Arts). This removal was criticised by NPAC,
While decisions of the Delegate of the Minister remain
reviewable, it is reasonable that the Minister's decision (as he/she is
exercising discretion) can be tested on appeal to the AAT. Improving public
rights to review leads to better public participation and the NPAC strongly
believes that any limitations on that review should be removed.
At the time the amendments were being considered, the then Minister
justified the removal of merits review of decisions made personally by the
Minister on the grounds that 'where decisions are sufficiently important to be
taken by the Minister as an elected representative, those judgements should not
be overturned by an unelected tribunal such as the AAT'.
Despite this explanation, the Senate Scrutiny of Bills committee expressed
concern, remarking that it 'finds the explanation that such important and
complex decisions "should not be able to be overturned by an unelected tribunal
such as the AAT" obscure'.
In 1999, the ARC released a report outlining principles that should
determine what decisions should be subject to merits review.
That report stated:
As a matter of principle, the Council believes that an
administrative decision that will, or is likely to, affect the interests of a
person should be subject to merits review. That view is limited only by the
small category of decisions that are, by their nature, unsuitable for merits
review, and by particular factors that may justify excluding the merits review
of a decision that otherwise meets the Council's test.
The Council's approach reflects the requirements for standing to
appear before the AAT. Section 27 of the Administrative Appeals Tribunal Act
1975 ('AAT Act') provides that persons whose interests are affected by a
decision may apply to the AAT for review of the decision.
Adopting the reasoning under the ARC's approach, it seems that
administrative decisions made under Parts 7 and 8 of the Act (relating to
environmental assessment decisions) would be suitable for merits review, for
both applicants and third parties.
The logic underpinning this conclusion also appears relevant to administrative
decisions made under section 184 of the Act. Section 184 of the Act deals with
the Minister’s power to amend lists of threatened species, threatened
ecological communities and key threatening processes.
There has been concern among some stakeholders that the existing scope
for merits review in the EPBC Act is too narrow:
The EPBC Act has no merits review system [for listings
decisions], unlike for example Victoria’s planning system where the Victorian
Civil and Administrative Tribunal (‘VCAT’) is able to review, on their merits,
decisions made by Councils to issue (or not to issue, or failing to issue)
planning permits. Instead, the Minister decides whether to make a listing and
the avenues of review are limited. Perhaps they have not been tested to their
full extent yet, because the EPBC Act does have strong objectives, so there may
be scope to argue that the Minister’s decision was unreasonable in the
circumstances, and to challenge the Minister's decision on other administrative
Other parties arguing that scope for merits review should be expanded
included Lawyers for Forests
and the NPAC.
Dr Chris McGrath argued that the application of the principles provided
by the ARC would mean that decisions under sections 75 and 133 of the Act
should be subject to merits review.
Section 75 decisions are those determining whether an action is a controlled
action. Section 133 decisions are those determining whether an action will be
approved and under what conditions.
The Wilderness Society recommended that there be merits review of:
The ACF's position was similar, supporting merits review for 'key
decisions under the EPBC Act – including key controlled action and
"listing" decisions under Parts 7 to 9 and 13'.
Since the Act was changed in 2006 there does appear to have been a
reduction in the number of merits review cases brought before the AAT, though
the number of cases was never high. There appear to have been about seven
distinct AAT decisions from July 2004 until amended Act took effect on 19
February 2007, and only two since that time. At the same time, there appears to
have been an increase in third parties seeking administrative review in the
Federal Court or High Court (though, again, the total number of cases involved
is very small). The figures suggest that there is little scope for any form of
judicial review at present.
Dr McGrath has noted that creating increased scope for merits review
could lead to an increase in costs and the length of time involved in gaining
approvals under the Act. Dr McGrath also noted increased scope for merits review
could lead to an increase in appeals from proponents who are dissatisfied with
decisions under the Act, noting that 'developer appeals far outnumber public
interest litigation under State planning laws that allow merits review.' He
argued in relation to these costs that 'if good decision-making is the main
objective rather than merely cheap and speedy decisions then merits review is
There appeared to be an expectation amongst some stakeholders that
increased opportunity for merits review would result in decisions that favoured
the position of environmental organisations. However one of the recent
administrative review cases highlights the possibility that expanded access to
merits review could lead to more cases being brought by proponents seeking
favourable decisions on their development approvals. In Phosphate Resources
Ltd v Minister for the Environment, Heritage and the Arts, the proponent
had in fact tried unsuccessfully to argue the case on merits grounds. Buchanan
J noted 'the arguments advanced suggesting there was no evidence to support a
range of findings really sought to invoke an impermissible review of the merit
of those findings'.
If merits review had been available, the outcome could have been different. Given
that proponents are likely to be better resourced than community groups and
NGOs, the committee is not sure why some groups think that merits review will
result in fewer approvals of developments, or tighter development conditions.
The committee notes the view expressed by the then Minister in 2006 that
some decisions are appropriately the responsibility of elected officials and
should not be overturned by unelected officials. The committee recognises that
there are decisions of national significance and which are effectively policy
decisions are appropriately the realm of government. The committee agrees with
the approach of the ARC, however, and notes that decisions of the type made
under the EPBC Act are not all necessarily of this character. It is not unusual
for Ministerial decisions (and not just those of delegates) to be subject to
merits review. The committee is of the opinion that greater access to merits
review for decisions taken under the Act may be appropriate in certain cases,
as it could have the overall impact of improving the quality of decision making
under the Act.
The committee recognises that increasing the number of decisions under
the Act that are subject to merits review could have resource implications both
for the department and the AAT. The committee notes that the AAT already
employs a range of specialists, including those with environmental
qualifications or experience. It also notes that the Tribunal organises its
work into Divisions that both reflect areas of significant workload and which
allow the Tribunal members to develop specialist expertise.
The committee recommends that consideration be given to expanding the
scope for merits review in relation to ministerial decisions under the Act,
particularly in relation to:
whether an action is a controlled action,
assessment decisions; and
decisions on whether a species or ecological community is to be
listed under the Act.
The committee recommends that the independent review examine this
possibility in the first instance, and that the process of consideration should
include consultation with the Administrative Appeals Tribunal.
Senator Anne McEwen
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