Evidence in support of the repeal of section 487
The committee received submissions which identified matters that support
the repeal of section 487. These included:
detriments to business certainty;
availability of community engagement in environmental approval
availability of other review processes;
lack of clear improvement in environmental outcomes through the
use of section 487; and
continuing protection of the environment provided by the EPBC
Detriments to business certainty
The Minerals Council of Australia (MCA) argued that the definition of
who has standing under the Environment Protection and Biodiversity
Conservation Act 1999 (EPBC Act) is extremely broad. It noted that it
extends beyond that provided under the common law and the Administrative
Decisions (Judicial Review) Act 1977 (ADJR Act) in that it does not require
a connection between the 'aggrieved' person or organisation and the area to
which the development approval relates. Further, no other Commonwealth
legislation has a similar broad definition for standing in judicial appeals.
Submitters argued that extended standing under section 487 provides
little certainty for business. While proponents of development projects engage
with those directly or indirectly affected by the project during assessment and
approval processes, they cannot account for or undertake similar engagement
with those not directly affected.
Ports Australia commented that, while supporting rigorous assessment processes
for major development proposals and the need to ensure that new projects are in
line with the principles of sustainable development, it was crucial that its
members are 'afforded certainty and consistency with respect to regulatory and
It was submitted that the extended standing provisions of section 487
has led to delays to, and in some cases the blocking of, development projects.
Ports Australia, for example, commented that 'virtually every major coal
project or coal enabling infrastructure project in recent years in Australia
has been the subject of lengthy and costly legal proceedings'.
Submitters argued that these actions were being undertaken despite the
extensive approvals processes and engagement with the community required before
approval had been given.
Of particular concern to those supporting the repeal of section 487 was
its use by groups opposed to development generally. For example, the South
Australian Chamber of Mines and Energy (SACOME) stated that the extended
standing provisions allowed 'in the past, groups who have the primary and
stated purpose of disrupting and delaying resources projects in order to meet
their anti-mining, anti-fossil fuel agenda' to seek 'judicial review of
decisions under the EPBC Act through their extended standing in s 487(3)'.
The MCA and Ports Australia pointed to a strategy developed by a range of
environmental groups in 2011 aimed at stopping coal export in Australia.
The legal appeals instigated by these environmental groups were
described as frivolous and vexatious. The MCA argued that it is 'manifestly
clear' that some groups are seeking to 'game the unique judicial review
provisions' of the EPBC Act and that there is little to deter frivolous and
While costs may be awarded against the appellant, the MCA stated this is not
common (nor necessarily appropriate) in public interest cases. Further, groups
appealing a decision are often unable to pay costs.
The MCA concluded that:
It is plain that this campaign of economic sabotage will continue
and even escalate without legislative reform.
The Business Council of Australia (BCA) also commented on vexatious
litigation and stated:
It would not be correct to say that all historical cases
brought under section 487 are necessarily vexatious, but the broad definition
of the section does risk vexatious claims in future. Some groups motivated by
issues beyond the matters of environmental significance in the Act intend to
use section 487, not to address legitimate claims by aggrieved persons, but
rather to delay major capital projects and incur costs substantial enough to
make the projects unviable.
The impact of delays to major development projects was also raised by
the MCA. The MCA noted that, even if a legal action is not successful, projects
are delayed. Resolution of actions may take some time to conclude, adding to
the cost of proponents in terms of delay and expense.
The MCA added that 'in total, unnecessary delays can add costs of $46 million
per month to a major greenfields mining project'.
The BCA also commented that even a small delay may 'have a
disproportionate impact on the cost of the project, particularly if it limits
the window for investment decision-making, which is often already fairly
short'. The BCA pointed to the findings of the Productivity Commission that a
one-year delay to a major offshore liquefied natural gas project might incur
costs to the proponent of up to $2 billion.
The costs of delays not only affect proponents, but there are also costs
to the broader community from delays to revenue, jobs and other benefits
generated by major projects. The BCA commented that 'these costs are ultimately
borne by the community in economic activity foregone, which leads to lower
income and employment'.
The MCA concluded that the repeal of section 487 will reduce the
opportunity for frivolous or vexatious legal challenges which may delay
The SACOME added that it supported measures that would 'close avenues to
vexatious claims to prevent development of resources projects that have been
assessed and approved under Federal and State laws'.
The BCA concluded that:
By repealing section 487, the Bill will improve the
efficiency of the assessment and approval of major projects and contribute to a
more conducive environment for investment and economic growth.
However, Ports Australia, while supporting the repeal of section 487,
remained concerned about legal challenges:
...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 it 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.
Availability of other review processes
Industry submitters noted that judicial review will continue to be
available to a person who is genuinely and legitimately aggrieved under the
ADJR Act, as well as the common law.
The MCA commented that the 'ADJR Act seeks to achieve a balance between the
right of parties to appeal and the certainty required by the proponent
regarding the validity of approval decisions'. The MCA went on to state that
the ADJR Act ensures that persons affected by a development will have access to
judicial review, 'while constraining, within limits, those persons or
organisations not legally connected or affected by the development or the
matter under consideration'.
The BCA also noted that these review process would still be available to
those that prove they have sufficient standing as a person aggrieved by a
decision. The BCA commented:
Accountability for government decisions would still be possible
under standing provisions for judicial review in the ADJR Act: persons whose
interests are directly affected still have standing. There would still be
avenues for the community to participate in the development of major projects,
and for the government to be held to account for decisions under the EPBC Act.
In this regard, the Department of the Environment (the department) noted
that 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. The department commented that the 'ability to commence proceedings
for judicial review either under the ADJR Act or the Judiciary Act is available
to any person or organisation that can establish they have standing'.
Availability of public engagement
Submitters noted that extensive community and stakeholder engagement is
undertaken during the approval processes for development projects and this
enables the public to raise concerns. The MCA noted that project assessment and
approval processes for mining developments include comprehensive environmental
requirements which may take many years to complete. These processes provide
multiple opportunities at both the Commonwealth and state level for opponents
to lodge objections and have their concerns considered.
At the Commonwealth level, the department noted that the EPBC Act
contains expansive public engagement requirements in the referral and
assessment processes. The department explained that:
Once a matter has been referred under the EPBC Act, the
referral will be published and the public has an opportunity to comment on
whether or not the action is a controlled action. The Minister must take into
account any comments made by the public in making the controlled action
If a controlled action decision is made, the public has an
opportunity to comment on the assessment documentation prepared by the
proponent. Any comments received by the proponent must be taken into account in
the finalisation of the assessment documentation. Following submission of the
assessment documentation to the Minister, the EPBC Act enables the Minister to
seek public comment on the proposed decision and conditions (if any), which
must be taken into account by the Minister before deciding whether to grant an
approval and what conditions (if any) to impose on the approval.
The department concluded that the public consultation processes for
specific approval processes will continue to provide an opportunity for the
public to engage in the decision-making process under the EPBC Act. This will
not be affected by the repeal of section 487.
The MCA also noted that there are numerous formal opportunities for
public comment under the various state regimes. The MCA provided the following
Queensland – Public comment is sought on the draft terms of
reference for the assessment and on the draft environmental impact statement,
and for major projects the draft conditions of the environmental licence.
Western Australia – Public comment is sought at the project
referral stage (referrals published on the WA EPA website). Submissions are
also sought on the assessment documentation.
Victoria – Public comment is sought on the draft scoping document
for the environmental effects statement (EES). Once completed, the EES is
released for public submissions, which are considered by the minister. In some
cases, the minister may appoint an inquiry, which may include a formal hearing
In addition to formal public consultation, the MCA noted that companies
are required to develop and implement comprehensive and inclusive stakeholder
engagement plans. Stakeholders include local councils and communities,
adjoining landholders, leaseholders, Indigenous interests, relevant government
agencies and relevant parts of the broader community.
Lack of clear substantial improvement in environmental outcomes
The BCA argued that section 487 has not led to 'clear substantial
improvement in environmental outcomes that would not have been achieved through
less costly approaches'. The BCA added that cases made under section 487 focus
on minor administrative matters as judicial review examines the process
undertaken for the purpose of making a decision.
The BCA further commented that successful judicial review decisions may
delay projects, but rarely result in a difference between the original decision
made by the minister and the subsequent decision made following a case under
section 487. It was submitted that most of the 30 cases brought under section
487 have not resulted in a different ministerial decision or a change to the
conditions attached to the development approval. While there have been
instances of successful cases, they have generally resulted in only minor
changes to approval conditions. Only one case has resulted in clear substantial
improvements in environmental outcomes.
Thus, the BCA argued 'it is not clear' whether section 487 has resulted
in substantial improvements in environmental outcomes.
Because it is limited to judicial review, section 487 does
not strengthen the already compelling incentives for project proponents to
maintain a 'social licence to operate' and protect environmental outcomes.
It was also stated that the cost to the public of third party judicial
review challenges is substantial. The Department of the Environment commented
that 'exposure to legal challenges is a necessary and appropriate discipline in
the EPBC Act decision-making process'. However, the Commonwealth, and the
broader community, bears the significant cost of legal challenges. The department
noted that the costs of individual matters typically involve hundreds of
thousands of dollars of professional fees. In addition, there are significant
internal costs to the department of dealing with the proceedings (both money
and time spent by officers involved). Generally, the department cannot recover
its external legal costs when it is successful.
The department provided a list of legal challenges under section 487. In
25 legal challenges, the court ordered the third party applicant to pay
the Commonwealth's costs, where the Commonwealth was successful in defending
the validity of a decision. In relation to the recovery of these costs, the
department stated that:
Based on the information available, the Department has not
recovered costs except in seven matters. This is due, in substantial part, to
the financial incapacity of relevant applicants to pay the costs of the
Commonwealth. Generally, the third party applicant has been an individual or an
environmental or community group with limited or no assets.
Continued protection of the environment
The department noted that the repeal of section 487 will not result in a
reduction in environmental standards. The assessment and approval provisions
under the EPBC Act will not be changed and the matters that the minister must
have regard to, when deciding whether to grant an approval, will not be
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