Australian Greens' Dissenting Report
The Australian Greens stand with Australians from every walk of life who
have come together to oppose this reckless and destructive Bill. Traditional
owners, farmers, lawyers, environmentalists and ordinary Australians have
already demonstrated that they will not allow their rights to enforce our
national environment law to be stripped away.
Australians love our precious places, our clean air and water, our
priceless native species and our valuable environmental assets. Over 20,000
Australians took the time to write to the Committee to oppose the Bill, and the
Australian Greens applaud them.
Attacks on public enforcement rights are an attack on democracy and the
rule of law. When the Coalition government and its big mining mates break the
law, they change the rules.
All Australians care about the Great Barrier Reef, the Tasmanian
forests, and the Liverpool Plains, and we all have a stake in protecting them.
This Bill ignores the fact that we all have an interest in a safe climate,
clean air, clean water, and thriving biodiversity. It denies that people all
across the nation who love our precious places and species have the right to
see the laws designed to protect them complied with.
This Bill is the latest in a long line of attacks by a government that
cannot face criticism or dissent on independent voices for the environment.
These attacks include including totally defunding EDOs, launching a witch hunt
against tax deductible donations to environment groups, slashing funding to
community conservation groups and trying to hand over federal environment power
to State, Territory and local governments.
This Bill is Prime Minister Turnbull's next test on the environment. It
represents a dummy spit from a Government that broke the law, and now wants to
stop the community from enforcing the law. The decision for the Prime Minister
is: will he continue the ideological attacks of the Abbott government, or will
he listen to the voices of ordinary Australians defending their precious
Our environment laws are already
Australia is in a biodiversity crisis, and the current laws are just
managing the decline, not protecting our environment. We have one of the worst
rates of species loss in the world. We've lost about 10% of all our mammals, or
29 in the last 200 years, out of a total 273. In a global context, that is
more than 35% of all of the world's mammal extinctions, anywhere.
The Environment Protection and Biodiversity Conservation Act 1999
(the EPBC Act) only protects the best of the best – things like the Great
Barrier Reef, the Tasmanian forests, koalas, bilbies and the Leadbeater's
Possum. Only matters of "national environmental significance" are
protected, and only a "significant impact" on those matters is
That means that the vast bulk of all development falls completely
outside the Act. In fact, there are about 250,000 applications under State and
Territory planning laws each year. In contrast, our national environment laws
only deal with about 400 projects each year.
The EPBC Act does not allow merits review of decisions, only judicial
review, meaning that the substance of the Minister's decision is already immune
from challenge – the only thing that can be challenged is whether the Minister
followed the correct decision making process.
Federal, State and Territory governments are in the thrall of the fossil
fuel and resources industries. Not one coal mine or CSG well has ever been
refused under the Act, and yet the Coalition government insists that our laws
must be weakened further.
Barriers to public enforcement are
There are already very significant barriers to community enforcement of
the law. Community groups already face a range of barriers to going to court, including:
rules against vexatious litigation which allow claims to be 'struck
out' by the Federal Court (the Court);
high legal fees, and the risk of paying the other side's costs if
they lose (the Federal Court is a 'costs jurisdiction');
expensive expert witnesses to testify against well-paid
consultants for the other side;
sometimes, the need to give the Court' security for costs' in
case they lose;
sometimes, the need to give the Court an 'undertaking as to
damages' in case they lose.
Mining companies often 'buy out' neighbouring farms and other
properties, leaving no-one to object. Even where local landholders remain, they
often face very significant barriers to taking action to enforce the law. Shontae
Moran, a farmer near Clermont in Queensland has said: "As landholders we
don't have the time or the funding to be investing in legal action in regards
to environmental approvals."
A report by The Australia Institute found that very few projects are
ever challenged in court. Only 22 projects, or 0.4% of the 5,500 projects
referred for assessment under the EPBC Act have been subject to legal challenge
since the Act came into force in 2000. Of the 5,500 projects referred, 1,500
have been assessed under the Act. Only twelve projects have been refused, and 9
have been deemed 'clearly unacceptable' by the Minister. Of those approved,
only 22 projects were subject to legal challenge, and only two projects have
ever been stopped by legal challenges.
Expert advice supports
strengthening public enforcement
If the Coalition government had been looking for a genuine blueprint for
reform, instead of an ideological attack, it could have examined the Independent
Review of the EPBC Act, (the Hawke Review)—which
Public interest litigation is one of the most significant
means of enforcing environmental law and in enhancing the transparency,
integrity and rigour of government decision-making about activities which
impact on the environment. Often the cases are 'test cases', concerning
questions of law that have not previously been considered judicially. Because
public interest litigation plays this role, it is important that the law
The Hawke Review also said:
Some pieces of legislation, both at the Commonwealth and
State or Territory level, contain 'open standing' provisions that confer
standing on all members of the public for all actions. The Trade Practices
Act 1974 (Cth) is one example, as is most NSW environmental legislation
such as the Environmental Planning and Assessment Act 1979 (NSW).
Despite all the fears that the above types of provisions
would engender a 'flood' of litigation, they have been unproblematic. There is
no evidence of them being abused and the number of cases to date has been
As a result, one of the "core elements" of the Hawke Review's
recommendations was to:
...improve transparency in decision-making and provide greater
access to the courts for public interest litigation.
The review recommended making it easier to challenge decisions under our
national environment law by:
Removing the requirement for applicants to give an undertaking as
to damages which deters many community groups from enforcing the law.
Creating a new category of proceedings called "public
interest proceeding" with more generous costs rules.
Removing the requirement to give a security for costs.
Australians oppose this reckless
Australians want to see our precious places and species protected. The
fact that 21,117 individuals have written to the Committee supporting public
enforcement shows the depth of feeling in the community.
Dr Anne Poelina Nyikina traditional custodian from WA, submitted:
I believe any Australian aggrieved about the destruction of
any environmental destruction where ever they live must have the right to be
included in any case for defence of the environment...The Act must not be made
weaker in fact it must be strengthened...
The National Farmers Federation (NFF) do not support the Bill,
and NFF Vice President Fiona Simson has said:
The Adani decision seems to have been caused by either Adani
or the department not applying the law properly, but then, suddenly and with no
warning or consultation, we get this put forward ... we prefer evidence-based
Experts in administrative law, Stephen Keim SC and Dr Chris McGrath have
...going to court is very difficult, stressful and costly...Removing
this potential scrutiny will encourage both public servants and ministers to be
less careful about complying with the law's requirements.
Murray Wilcox QC, a former Federal Court judge has said:
[This Bill] will serve no useful purpose; on the contrary, it
will complicate and prolong those few legal actions that are brought under the
[EPBC Act]...Section 487 has worked well. As anticipated, the section has
eliminated arguments about standing, with consequential savings in cost and
time. As others have pointed out, section 487 has not opened any
floodgates...After 15 years of successful operation, why now the fuss? Apparently
because a respected north Queensland conservation organisation had the temerity
to point out to the federal court (correctly) that the minister had made a
decision approving Galilee basin coalmining without taking into account
information (that his department held) about the possible effect of mining on
two endangered reptile species.
the Law Council of Australia,
Queensland Association of Independent Legal Services,
and many other civil society groups have added their voices to the community
opposition to this Bill.
Environmentalists from every major and many smaller organisations have
added their voices too. Geoff Cousins, the President of the Australian
Conservation Foundation has said: "I believe Australians will not stand
for this. What we want is not 'lawfare', but simply fair law."
The Australian Greens thank the ACF,
Greenpeace Australia Pacific,
Lock the Gate Alliance,
The Wilderness Society,
Environmental Justice Australia,
the Australian Marine Conservation Society,
the EDOs of Australia
and many others for their submissions and other public contributions to the
debate. The Australian Greens also thanks the hundreds of smaller groups and
individuals who have taken the time to write substantive submissions to this
Even the big business lobbies which are usually quick to publically
support attacks on our environment laws have been uncharacteristically
reticent. On this issue, the Coalition has been left high and dry.
A clear majority of Senators have now publicly stated that they do not
support this Bill. In the face of this overwhelming level of opposition, the
Australian Greens call on Prime Minister Turnbull to drop this reckless attack
on our national environment laws.
Our plan to strengthen Australia's
national environment laws
Before the 2013 federal election, the Australian Greens announced a
comprehensive policy to strengthen our national environment laws: Environment
Laws that Work.
That policy is a $346 million plan which would retain and expand the role of
federal oversight. It would create an independent expert Sustainability
Commission to offer expert advice, expand federal oversight to include climate
change, water, national parks and forests, improve compliance and enforcement,
properly consider cumulative impacts from multiple developments, and make sure
the precautionary principle is put into action. That would mean binding limits
on the federal Minister's discretion to approve damaging projects.
Good decision making rests on accurate information, which is why we
would build a national set of environmental accounts, invest in a scheme to
ensure the quality and independence of advice provided by environmental
consultants and require all environmental impact statements to be independently
reviewed by the Sustainability Commission.
Crucially, our plan would expand the rights of ordinary Australians to
enforce the law where their governments have failed. It would allow courts to
review the merits of a decision, not just the process for making the decision
(judicial review). It would prohibit costs orders in public interest cases and
establish a community information unit to actively support understanding and
engagement with our national environment laws.
Environment Laws that Work sits alongside our plan to save our
threatened species, protect the Great Barrier Reef and protect our farmland and
groundwater from coal and gas. Our policy builds on our earlier position, Principles
to Protect Australia's Environment.
The Australian Greens applaud the work of the Australian Panel of
Experts on Environmental Law which has recently begun a process of broad
consultation and deliberation on the future of Australia's environment laws.
The Panel aims to develop recommendations for a new generation of federal
environmental legislation which will reflect international best practice and
strong and efficient protection and management of Australia's environment,
including principles of environmental democracy.
It is that kind of considered, coordinated approach which should be the
starting point for any discussion of environmental law reform. Instead, the
Coalition government has launched attack after attack on Australia's
That the Environment Protection
and Biodiversity Conservation Amendment (Standing) Bill 2015 not be passed.
Expand the rights of ordinary
Australians to enforce the law where their governments have failed by allowing
merits review of approval decisions rather than only judicial review.
Prohibit costs orders in public
interest cases under our national environment laws or implement a presumption
that each party bears their own costs.
Remove the requirement to give
security for costs and undertakings for damages in public interest cases under
our national environment laws.
Limit the Minister's discretion to
approve environmentally destructive developments, and require that decisions
under our national environment laws are consistent with the precautionary
principle and consider cumulative impacts.
Expand scope of our national
environment laws by creating a "trigger" for all aspects of the
environment when the impact is significant, including water, forests, global
warming and national parks.
Restore the $5.2 million in
funding cut from voluntary environment, sustainability and heritage
organisations in the 2014 Budget.
Restore federal funding to
Environment Defenders Offices.
Reverse the 26% staff cuts at the
Department of Environment which are currently being implemented.
Abandon the plan to hand federal
environment powers to State, Territory and local governments.
Senator for Queensland
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