On 20 August 2015, the Senate agreed to amend the report of the
Selection of Bills Committee and referred the provisions of the Environment
Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 to the
Environment and Communications Legislation Committee for inquiry and report by
12 October 2015.
The reporting date was subsequently extended to the second last sitting day in
with the committee then agreeing to present its report on 18 November
Conduct of the inquiry
In accordance with its usual practice, the committee advertised the
inquiry on its website and wrote to relevant individuals and organisations
inviting submissions. The closing date for submissions was 11 September 2015.
The committee received 292 submissions, which are listed at Appendix 1.
The submissions may be accessed through the committee's website: www.aph.gov.au/senate_ec.
In addition to the published submissions, the committee received a
significant number of form letters and other correspondence that expressed the
view that the bill should not be passed. The committee agreed to publish an
example of each of the eight types of form letter received on its website. In
total, 21,117 form letters were received.
The committee had initially scheduled public hearings in Canberra,
Melbourne, Sydney and Brisbane. These hearings were postponed and the committee
subsequently determined that it would complete the inquiry through
consideration of the submissions received.
The committee thanks all of the organisations and individuals who
assisted the committee with the inquiry.
Purpose of the bill
The bill proposes to amend the Environment Protection and
Biodiversity Conservation Act 1999 (EPBC Act) to repeal section 487. The
repeal of this section would result in the removal of the extended standing
provisions to bring proceedings in relation to decisions under the EPBC Act.
In his second reading speech, the Minister for the Environment, the Hon
Greg Hunt MP, noted that 'contrary to the intentions of the EPBC Act, the federal
law is now being used to "disrupt and delay" infrastructure' by
environmental organisations. The Minister went on to state:
This is the explicit Americanisation of environmental
campaigning with its focus on tying up projects in legal challenges where the
goal is not to win, but to disrupt and delay.
The Minister concluded:
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. This will continue to be the case.
The EPBC Act standing provisions were never intended to be
extended and distorted for political purposes as is now occurring with the US
style litigation campaign to 'disrupt and delay key projects and
infrastructure' and 'increase investor risk'.
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.
Background to the bill
Certain administrative decisions made under the EPBC Act are subject to
judicial review by the Federal Court of Australia. Judicial review is concerned
with the legality of the way in which a decision is made by the statutory
decision-maker. Ordinarily, applications for judicial review would be made
section 5 of the Administrative Decisions (Judicial Review)
Act 1977 (ADJR Act) which concerns applications made to the Federal Court;
more rarely, under section 39B of the Judiciary Act 1903 which
concerns the applications made to the Federal Court as part of its original
jurisdiction, for instance, an application to seek an injunction or a
declaration against an officer of the Commonwealth.
Before a person or an organisation can commence proceedings for a
judicial review, they must be recognised by the court as having the right or
'standing' to do so. Standing to make an application under section 5 of the
ADJR Act is determined by whether someone is a 'person aggrieved' by a decision
of an administrative character made under an enactment. An aggrieved person
includes a person whose interests are adversely affected by the decision.
Generally, a person or organisation would need to show a 'special interest'
that is adversely affected by the relevant decision.
Standing to make an application under section 39B of the Judiciary Act is
determined by the common law. The applicant must either have a private right or
be able to establish that he or she has a 'special interest in the subject
matter'. 'Special interest' would generally require that the applicant show an
interest in the subject matter of the action which is beyond that of a member
of the public.
Extended standing provisions in the
Section 487 of the EPBC Act extends standing of parties for the purpose
of judicial review of decisions made under the EPBC Act. It does this by
extending the meaning of the term 'aggrieved person' in the ADJR Act beyond its
normal application. Under section 487 an 'aggrieved person' for the purposes of
making an application under the ADJR Act means:
in the case of a person – an Australian citizen or ordinarily
resident in Australia or an external Territory;
in the case of an organisation or association – the organisation
or association is incorporated, or was otherwise established, in Australia or
an external Territory and has included in its objects or purpose, the
protection or conservation of, or research into, the environment; and
at any time in the two years immediately before the relevant
decision, failure or conduct to which the application relates, the person,
organisation or association has engaged in a series of activities in Australia
or an external Territory for protection or conservation of, or research into,
Associated with this, section 488 provides that a person acting on
behalf of an unincorporated organisation is also a 'person aggrieved', and
therefore may also apply for review under the ADJR Act.
Section 487 was part of the EPBC Act when it was enacted in 1999 and has
not been amended since that time. The Explanatory Memorandum to the EPBC Bill,
commented that this clause extends (and does not limit) the meaning of the term
'aggrieved person' in the ADJR Act.
The Department of the Environment (the department) commented that:
Section 487 was intended to recognise the general public
interest in the protection of matters of national environmental significance
under the EPBC Act. This is on the basis that the public interest is separate
from a personal interest, such as property right or business interest, affected
by a decision under the EPBC Act.
Third party applications for
judicial review under section 487
From the commencement of the EPBC Act in 2000 until 19 August 2015,
817 projects had been approved by the Minister or his or her delegate
under the EPBC Act while 5,364 projects had been referred to the department.
The department noted that, since 2000, 22 different third party
applicants have sought judicial review of decisions made by the Minister or his
or her delegate under the EPBC Act in reliance on section 487. Seventeen of
these applicants were environmental and community groups and five applicants
There have been 37 third party legal challenges to approval decisions
made under Parts 7, 9 and 10 of the EPBC Act since 2000. These challenges
concerned 23 separate projects. Third party applicants have been
successful in four legal challenges relating to three separate projects. In
addition, eight of the 37 legal challenges were discontinued with either the
consent of the parties or were withdrawn by the applicant.
The grounds for third party legal challenges to EPBC Act approval
decisions include that the decision maker:
did not take into account relevant considerations;
took into account irrelevant considerations; or
provided insufficient time for particular elements of the
The department commented that, in the majority of cases, the courts have
found that the EPBC Act decision makers' decisions made were valid. However, in
the following three cases the courts found against the validity of the
Queensland Conservation Council Inc v Minister for the
Environment and Heritage  FCA 1463 (Nathan Dam Case) and Minister
for the Environment and Heritage v Queensland Conservation Council Inc 
FCAFC 190 (Appeal). The Federal Court found that the Minister failed to take
into account a relevant consideration in the exercise of power (under section
Lansen v Minister for Environment & Heritage 
FCAFC 189: The majority of the Full Federal Court found that the Minister had
failed to consider a relevant consideration under paragraph 134(4)(a) and to
comply with a statutory obligation when he did not consider the NT conditions
on the approval. The Court found that these failures made the decision to
attach conditions invalid, and that in turn made the approval decision itself
Tarkine National Coalition Inc v Minister for SEWPAC
 FCA 694 (Shree Minerals): The Federal Court held that in deciding to
approve the taking of the action, the Minister had failed to have regard to a
document called Approved Conservation Advice for Sarcophilus harrisii (Tasmanian
Devil) as required under sub section 139(2) of the EPBC Act.
In 2013, the Environment Legislation Amendment Bill 2013 was introduced
to address the implications arising from the Federal Court's decision in the
Schedule 1 of the bill proposed 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 a decision under the EPBC Act would not render such
decisions, taken prior to the commencement of the bill, invalid. However, the
Senate amended the bill to omit these proposed amendments and the bill was
subsequently passed by both Houses without Schedule 1.
On 4 August 2015, Justice Katzmann of the Federal Court made orders in a
case brought by the Mackay Conservation Group in relation to the approval of
the Adani Carmichael mine (NSD33/2015 Mackay Conservation Group v
Commonwealth of Australia and Others). The Mackay Conservation Group's
challenge was based on three grounds:
that the Minister incorrectly assessed the project's climate
impacts, including failing to take into account the greenhouse gas emissions
that will result from the burning of coat that is mined and the impact of those
emissions on the World Heritage listed Great Barrier Reef;
the Minister ignored Adani's poor environmental record; and
the Minister failed to consider Approved Conservation Advices
from the Department of the Environment on the impact of the mine on two
vulnerable species: the Yakka Skink and the Ornamental Snake.
The orders set aside the Minister's decision under the EPBC Act to approve
proposed action to develop an open cut and underground coal mine, rail link and
associated infrastructure in central Queensland, subject to certain conditions.
The orders were made by consent, that is, with the agreement of the parties to
The basis for the orders was that the Minister found that the proposed
action would have a significant impact on two listed threatened species: the Yakka
Skink and the Ornamental Snake. While conservation advices approved by the
Minister were in place for these two species, contrary to the requirements of
the EPBC Act, the Minister did not have regard to the advices as they were not
included in the material before him at the time he made his decision.
On 14 October 2015, the Minister re-approved the Carmichael Coal Mine
and Rail project. The Minister stated that the project had been approved 'in
accordance with national environment law subject to 36 of the strictest
conditions in Australian history'.
Consideration of the bill by other committees
When examining a bill or draft bill, the committee takes into account
any relevant comments published by the Senate Standing Committee for the
Scrutiny of Bills. The Scrutiny of Bills Committee assesses legislative
proposals against a set of accountability standards that focus on the effect of
proposed legislation on individual rights, liberties and obligations, and on
parliamentary propriety. The committee also notes that the bill was the subject
of comments by the Parliamentary Joint Committee on Human
Senate Standing Committee for the
Scrutiny of Bills
The bill was considered by the Scrutiny of Bills Committee in its Alert
Digest No. 9 of 2015. That committee made extensive comments on the bill
and noted that it is 'well accepted' that restrictive standing rules pose
particular problems in the area of environmental decision making. In this
regard, the Scrutiny of Bills Committee commented that environmental regulation
often raises matters of general rather than individual concern. Thus, restrictive
standing rules may mean that decisions relating to environmental regulation
are, in practice, beyond effective judicial review to ensure that they comply
with the law.
The Scrutiny of Bills Committee went on to comment:
From a scrutiny perspective, it is a matter of concern that
the introduction of 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).
The Scrutiny of Bills Committee added that the amendment may not
substantially reduce litigation as it may introduce uncertainty as to the
circumstances in which environmental non-government organisations will be
The Scrutiny of Bills Committee also commented that no detailed
justification for the amendment was provided in the explanatory memorandum,
including evidence indicating that section 487 has led to inappropriate
litigation or has led to an inappropriately high number of review applications.
The Scrutiny of Bills Committee indicated that it had it had sought detailed
advice from the Minister as to why the proposed limitation on the availability
of judicial review of decisions under the EPBC Act is justified.
The Minister's response was reported in the Scrutiny of Bills
Committee's Eleventh Report of 2015. The Minister stated that the purpose of
the bill was to bring the standing arrangements under the EPBC Act 'into line
with the standard arrangements for permitting judicial review challenges to
Commonwealth administrative decisions as provided for under the ADJR Act and
the Judiciary Act'.
The Minister went on to add that there is an emerging risk of the extended
standing provisions 'being used to deliberately disrupt and delay key projects
and infrastructure developments'. Such actions would pervert the original
purpose of the extended standing provisions. The Minister concluded:
The amendments make the minimum change necessary to mitigate
the identified emerging risk. Australia has some of the most stringent and
effective environmental laws in the world. The proposed amendments do not
change Australia's high environmental standards, or the process of considering
and, if appropriate, granting approvals under the EPBC Act. The amendments also
do not limit what decisions are reviewable.
Following consideration of the Minister's response, the Scrutiny of
Bills Committee stated that it was concerned that the Minister's response 'does
not directly address the scrutiny issues which have been raised by the
committee'. The Scrutiny of Bills Committee drew the Minister's response to the
attention of the Senate, but expressed its 'continuing scrutiny concern that
the practical effect of this bill is to limit the availability of judicial
review in the absence of sufficient justification for that outcome'.
Parliamentary Joint Committee on
The Parliamentary Joint Committee on Human Rights (PJCHR), in its
Twenty-seventh Report of the 44th Parliament, reported on the bill. The PJCHR
commented that its assessment of the proposed amendment 'against article 12 of
the International Covenant on Economic, Social and Cultural Rights (right to
health and a healthy environment) raises questions as to whether the measure
limits the right, and if so, whether that limitation is justifiable'. In
addition, the PJCHR stated that 'the measure may engage and limit the right to
health and a healthy environment as the bill removes extended standing for
judicial review of decisions or conduct under' the EPBC Act.
As the bill's statement of compatibility did not justify that possible
limitation for the purposes of international human rights law, the PJCHR 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.
The PJCHR had not received a response from the Minister at the time of
the committee's consideration of this report.
Structure of report
Chapter 2 of this report canvasses the evidence submitted in support of
the repeal of section 487. Chapter 3 canvasses the evidence submitted in
support of the retention of section 487. The committee's view is provided in
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