Labor Senators' dissenting report
1.1
Labor Senators do not see any merit in the Environment Protection and
Biodiversity Conservation Amendment (Standing) Bill 2015 and strongly oppose
it.
1.2
Good government is based on evidence and appropriate public policy responses.
However, Labor Senators consider that the proposed repeal of section 487 cannot
be described as anything but a very unsophisticated, and short-sighted,
response to an administrative error made by the Government in the approval
process for the Adani Carmichael coal mine in Queensland.
1.3
The Government has been caught for not complying with the requirements
of the approval processes of the Environment Protection and Biodiversity
Conservation Act 1999 (EPBC Act). It was not an example of 'lawfare' or
action by 'vigilante' litigants to disrupt and delay key infrastructure
projects as the Government has constantly described it. Rather, the challenge
brought by the Mackay Conservation Group was based on legitimate grounds.
1.4
This view is borne out by the circumstances around the making of orders
by the Federal Court in August this year. The orders were made without a
hearing. The Federal Court made no judgment and there were no findings. The
orders were, in fact, made after the Australian Government Solicitor had
presented a letter to the Court, with the agreement of all parties, with the
proposed orders. That letter informed the Court that an error sufficient to set
aside the Minister's decision had been made. The parties' request and proposed
orders were based upon these significant issues:
-
the Minister found that the proposed action would have a
significant impact on two listed threatened species: the Yakka Skink and the
Ornamental Snake;
-
there were conservation advices approved by the Minister for
those two species;
-
under the terms of subsection 139(2) of the EPBC Act, it was
mandatory for the Minister to have regard to the approved conservation advices;
-
in deciding whether or not to approve the proposed action, the
Minister did not have regard to the approved conservation advices; and
-
the Minister did not have regard to the approved conservation
advices because they were not included in the material that was before him at
the time he made his decision.[1]
1.5
Having acknowledged that an administrative error had been made during
the approval process, it was then open to the Minister to re-approve the
Carmichael mine development in accordance with the provisions of the EPBC Act.
This occurred on 14 October 2015.
1.6
The Government has claimed that the repeal of section 487 is necessary
because important infrastructure projects have been needlessly delayed by
vexatious or frivolous litigation. The few submitters supporting the bill made
similar claims and pointed to adverse effects on business certainty, jobs and
the economy.
1.7
Labor Senators, however, consider that the evidence presented to the
committee convincingly refutes the level of vexatious or frivolous litigation
as a ground for the repeal of section 487. Of the 5,500 projects referred to
the Department of the Environment for assessment since the EPBC Act came into
force, around 0.4 per cent have been the subject of legal challenges.[2]
This does not provide any evidence that section 487 is being used misused and,
as noted by Dr Chris McGrath, the Government did not provide any evidence of
inappropriate litigation in the explanatory memorandum to the bill.[3]
1.8
Submitters also provided extensive and compelling evidence regarding the
safeguards within the judicial system that stop vexatious or frivolous actions.
This includes the awarding of indemnity costs by the Federal Court if
litigation is undertaken without basis and no reasonable prospect of success.[4]
The Humane Society International observed that:
Given the restricted resources and time of the courts, if
they were being inundated by vexatious litigants advancing causes which were
baseless purely to delay projects, they would likely have said so and would
have refused to hear cases such as the recent challenge to the Adani coal mine.
Considering this case was not thrown out and was indeed successful in court
indicates that no such inundation is current occurring. The supposed premise
for this Bill is baseless, there being no "lawfare" being waged by
environmental groups against developments.[5]
1.9
There are also very practical reasons for the small number of challenges
under section 487: success is difficult to achieve and challenges are complex,
time consuming, expensive and carry the risk of adverse costs orders if the
case is unsuccessful. As described in evidence, 'this is not a low bar which
any group wishing to delay a project or advance a vexatious claim can easily
jump'[6]
and as a consequence section 487 is seen as a 'last resort'.[7]
1.10
The Government and supporters of the repeal of section 487 have put
forward a range of other arguments in support of this very poor piece of
legislation. Labor Senators note that, similar to the vexatious or frivolous
litigation argument, these do not stand up to even cursory scrutiny.
1.11
The Attorney-General has stated that the extended standing provision in
the EPBC Act is 'very unusual, indeed unique'.[8]
This is not the case. The Commonwealth Hazardous Waste (Regulation of
Exports and Imports) Act 1989, at section 58A, provides for extended
standing of individuals and organisations to seek judicial review. There are
also examples of extended standing in state legislation.[9]
1.12
Labor Senators also note that there are examples at both the
Commonwealth and state level of 'open' standing for any person to commence
certain proceedings. These examples include the NSW Environmental Planning
and Assessment Act 1979. Submitters argued that, far from opening
'floodgates' of litigation, the open standing provisions have been used in a
limited number of cases.[10]
1.13
The Government has argued that the repeal of section 487 will remove an
avenue for groups that seek to delay infrastructure projects. However, while
desired by the Government, this may not be the case. The evidence received by
committee pointed to another, very likely, outcome: that reliance on the Administrative
Decisions (Judicial Review) Act 1977 (ADJR Act) and the Judiciary Act
1903 will introduce uncertainty about who has standing to bring about
judicial review. As a consequence, the time of the courts, project proponents,
those bringing a challenge and the Government will be diverted to lengthy and
unnecessary arguments to clarify the standing issue rather than addressing
compliance with legislative provisions. The Law Council of Australia stated in
this regard:
The s 487 test is broader and clearer than that under the
AD(JR) Act, and has the potential to reduce disputes about whether an applicant
has standing, and therefore also the cost and length of litigation.[11]
1.14
Many other submitters commented on this issue with, for example,
Mr Murray Wilcox AO QC stating that that 'the Bill is futile'.
Mr Wilcox went on to explain this view:
The Minister apparently assumes the court will apply the
standing rule laid down in section 5 of the Administrative Decisions
(Judicial Review) Act 1977 (the ADJR Act). That section allows a
"person aggrieved" to seek review of a decision. The ADJR Act does
not define this term and there is no reason to read it as being limited to a
person with a financial interest in the decision. It is a safe bet, if this
Bill is passed, that the courts will interpret section 5 in a similar way to
their adaptation to modern Australian conditions of the old English rule. The
only change from the present situation will be that the parties, and so the
courts, will spend time examining the details of the applicant's association
with the relevant issue or place. And people wonder why litigation is so
expensive.[12]
1.15
Labor Senators concur with this assessment: the repeal of section 487
may ultimately not only fail to exclude environmental groups from challenging
decisions made under the EPBC Act but the courts will also have to make complex
assessments about standing under the ADJR Act and Judiciary Act thus adding to
time delays and costs before the facts of the matter are reviewed.
1.16
It was also argued by supporters of the bill that the extended standing
provisions have resulted in no clear substantial improvements in environmental
outcomes.[13]
Labor Senators consider this to be an unsound argument and note that the Department
of the Environment stated that 'exposure to legal challenges is a necessary and
appropriate discipline in the EPBC decision-making process'.[14]
1.17
Other examples of improved environmental outcomes were provided to the
committee. Mr Stephen Keim SC pointed to the Nathan Dam case which resulted in
the clarification of matters to be taken into account by the Minister in the
approval process. Mr Keim submitted:
If the [Queensland] Conservation Council was not granted
standing, the question would have not been decided. Minsters for the
Environment, to this day, may have prevented themselves, in breach of the law's
requirements, from refusing proposed developments or, more importantly, from
imposing crucial conditions to protect down-stream environments (like the Reef
in [the Nathan Dam case]) through a misunderstanding of what the law permitted
and required the minister to take into account.[15]
1.18
The Wilderness Society also commented that the decision by North
Queensland Bulk Ports Corporation to look for alternative options to dumping
dredge spoil at sea was prompted by the Carmichael mine court case. The
Wilderness Society concluded:
Thus, standing granted under s 487 of the EPBC helped
facilitate a better decision-making process and ultimately a better outcome for
the environment.[16]
1.19
Other submitters also argued that the extended standing provisions have
benefited the environment by limiting the potential damage of large development
projects. The Conservation Council ACT Region, for example, stated:
The potential for challenges by third parties encourages
proponents of projects to fully consider the consequences of insufficient
planning and accounting for environmental values, thereby reducing the number
of inappropriate proposals that reach a stage where litigation might be
pursued.
The Conservation Council has found that our organisation
having standing on environmental matters has probably led to better and earlier
discussions with proponents, including the Government, and better development
outcomes for all parties.[17]
1.20
Of particular concern to Labor Senators is the limiting of access to
justice if section 487 is repealed. The committee received persuasive evidence
of the need to ensure that there is adequate access to justice in relation to
environmental matters. First, the protection of the environment is of concern
to all Australians. Conservation groups, researchers and educators have an
important role in safeguarding the interests of the Australian public
generally. They are experts in their field, have great understanding of the
consequences of environmental impacts and the ability to monitor these issues.
The Nature Conservation Council of NSW commented:
Environment organisations in particular play a key role in
defending the public interest, especially when individuals face significant
challenges in engaging in environmental decision making, and in particular accessing
judicial review mechanisms. In a world that is increasingly under threat from
adverse and complex environmental problems, including climate change and
unprecedented loss of biodiversity, the ability for democratic societies to
participate in environmental decision making is greatly advanced by the role
that can be played by environmental organisations.[18]
1.21
Secondly, the limiting of standing to those directly affected by
development projects fails to recognise the potentially far-reaching
environmental effects of those projects. Submitters provided examples of
adverse environmental effects occurring at great distances from the project
site including effects on water resources and air pollution. The People for the
Plains commented that a development in a state forest, where there are no
direct neighbour landholders, may have an effect on a community-wide resource
such as the Great Artesian Basin.[19]
1.22
Labor Senators consider that the bill displays a simplistic approach to
protection of matters on national environmental significance and a lack of
understanding of the potential far-reaching effect on the environment of large
development projects.
1.23
Thirdly, should this bill be passed, individuals directly affected by
development proposals will be forced to take on the burden of protection of the
Australian environment. EDOs of Australia commented:
By removing standing for third parties other than landholders
– conservation groups and individuals concerned about the environment – the
Bill increases the burden of responsibility on affected landholders to
'put the farm on the line' to obtain private legal advice and challenge the
legality of a government decision.[20]
1.24
Labor Senators do not consider that any government should contemplate
shifting the burden of overseeing protection of matters of national
environmental significance to individuals, much less expect those individuals
to 'put the farm on the line' to ensure that the natural heritage of all
Australians is protected. As EDOs of Australia went on to state:
By seeking to draw a hard line between standing for
landholders and conservationists, the Bill overlooks the primary role of the
EPBC Act – to protect the national environment – which necessarily involves 'the
community, land-holders and indigenous peoples'.[21]
1.25
Labor Senators support the maintenance of the rule of law and consider
that the Government's response to the Carmichael mine case calls into question
the Government's commitment to upholding the rule of law.
1.26
The EPBC Act establishes the assessment and approval process for
development projects that have an impact on matters of national environmental
significance. In the Carmichael mine case, the Government failed to ensure that
that process has been undertaken in accordance with the provisions of the EPBC
Act. Submitters asserted that the Government is now responding to an individual
case, when the 'primary' importance is the rule of law: decision-makers, when exercising
their duties under legislation are required to comply with legislative
requirements.[22]
1.27
The Public Law and Policy Research Unit, University of Adelaide, pointed
to the importance of compliance with legislated provisions in relation to
environmental approvals. It argued that the 'relationship between the rule of
law and government decision-making under environmental legislation is
absolutely critical to the protection of environmental values'. The Public Law
and Policy Research Unit went on to comment that the response to the Carmichael
case suggested that the Attorney-General accepted that 'where the Environment
Minister makes a lawful decision, as appears to the case in relation to the
proposed Carmichael coal mine, he or she should not be subject to legal
challenge by the conservation organisation'. As such, it was concluded that the
rule of law 'has become secondary to the economic and political goals of the
government of the day' and 'such an attitude is of grave concern as it seeks to
undermine one of the most fundamental protections against the unlawful exercise
of government power'.[23]
1.28
Submitters also stated that third party appeals ensure that decision
making is in accordance with the provisions of relevant legislation. Third
party appeals add to the transparency and accountability of government. In
addition, the Law Society of New South Wales warned that the bill 'has the
potential to undermine public faith in government because it seeks to limit
Court oversight of Executive decision-making and transparency'.[24]
That this Government should propose the repeal of the extended standing
provided by section 487 runs counter to the underlying principles of good
government, transparent decision-making and protection of the environment.
1.29
The majority committee report noted that a number of reviews supported
the current extended standing provisions in section 487. Notably, the Hawke
Review commented that the extended standing provisions 'created no difficulties
and should be maintained'.[25]
The Productivity Commission report on major development assessment processes
also acknowledged the value of extended standing.[26]
The Government is now ignoring the outcomes of these independent and
comprehensive reviews and introducing an amendment to the EPBC Act without any
evidence that extended standing is causing problems.
1.30
Labor Senators note the comments of both the Senate Standing Committee
for the Scrutiny of Bills (Scrutiny of Bills Committee) and the Parliamentary
Joint Committee on Human Rights (PJCHR) concerning the bill. Both committees
raised a number of matters of concern.
1.31
The Scrutiny of Bills Committee noted that it is well accepted that
restrictive standing poses particular problems in environmental
decision-making. Further, as environmental regulation often raises matters of
general, rather than individual concern, restrictive standing can mean that
decisions are, in practice, beyond review. The Scrutiny of Bills Committee
added that it is a matter of concern that the more restrictive standing rules
may result in the inability of the courts, at least in some cases, to undertake
their constitutional role of ensuring that Commonwealth decision makers comply
with the law. At the same time, the Scrutiny of Bills Committee commented that
there may be no substantial reduction in litigation as uncertainty may be
introduced as to which groups will be granted standing.[27]
1.32
The Scrutiny of Bills Committee sought detailed advice from the Minister
as to why the limitation on the availability of judicial review of decisions under
the EPBC Act was justified. While a response was received from the Minister,
Labor Senators note that the Scrutiny of Bills Committee expressed to the
Senate that it had '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'.[28]
1.33
The PJCHR raised questions as to whether the bill limits the right to
health and a healthy environment and if so, whether the limitation was
justified. The PJCHR sought advice from the Minister.[29]
However, this had not been received by the time the majority report was
considered by the committee.
1.34
Finally, Labor Senators wish to comment on the conduct of the
committee's inquiry in the bill. Following referral of the bill to the
committee it was agreed that, in order to conduct a thorough examination of the
bill and to allow the views of submitters to be fully explored, the committee
would hold four public hearings. The committee agreed to postpone the hearings on
the day the first hearing was scheduled. In agreeing to postpone the hearings,
the non-government members of the committee understood that the date for
tabling of the report would be extended and that the committee would reschedule
the proposed hearings before finalising its deliberations. This understanding
was confirmed by the Senate's decision on 12 October 2015 to extend the
reporting date to the second last sitting day in February 2016.
1.35
Despite the committee's earlier decision to postpone the hearings and the
Senate's agreement to the extension of the reporting date, the Government
members of the committee subsequently used their numbers to bring the
presentation of the report forward to 18 November 2015, thereby not allowing
time for any hearings to take place. The absence of hearings limited the
ability of committee members to test the Government's justification for the
bill and the evidence received in written submissions. Labor Senators consider
that in taking this course of action, the committee has abrogated its
responsibility to thoroughly scrutinise the bill. This approach also shows no
respect for the many submitters who took the time to contribute to the inquiry
on the understanding that the committee would carefully perform its duty of
scrutinising this bill.
1.36
The Labor Senators conclude that the Government's response to its own
error sets a dangerous precedent; one that may, in the long term, result in
more delays to approval processes for major infrastructure projects, undermine
the faith of the public in the Commonwealth's environmental decision-making and
compromise the rule of law.
Recommendation 1
1.37
Labor Senators recommend that the Environment Protection and
Biodiversity Conservation Amendment (Standing) Bill 2015 not be passed.
Senator Anne
Urquhart Senator the Hon Lisa Singh
Deputy Chair Senator
for Tasmania
Senator for
Tasmania
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