31 August, 2015
The Federal government last week made a high profile announcement that it wants to reduce the ability of activists to legally challenge Federal environmental approvals. It then introduced a Bill into the Australian Parliament the next day designed to do just that. However, there are real challenges ahead. The Bill may not be enough to stamp out determined activists, and it may not even get passed into law.
What’s happened?
Following high profile media announcements earlier in the week that the Government intended to take action against environmentalists using “vigilante litigation” to frustrate major projects, on Thursday 20 August 2015, Senator George Brandis introduced the Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 (Qld) (EPBC Bill) into the Australian Parliament.
It also comes only two weeks after the Federal Court decided to set aside an environmental approval granted to Adani Mining Pty Ltd (Adani) for the Carmichael Coal Mine in Queensland’s Galilee Basin. According to Senator Brandis, “the Adani case has shown why it’s very important that the courts not be used as a forum for vigilante litigation by people . . . who have no legitimate interest . . .and bring massive developments . . . to a standstill.’’
The mine was approved in July 2014. However, a subsequent legal challenge by a conservation organisation resulted in the approval being overturned on 5 August 2015 due to a deficiency in the decision making process.
What does the Bill propose to do?
It is a very simple Bill. It repeals section 487 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
What is section 487 of the EPBC Act?
Only a person with ‘standing’ can bring a legal action. In the case of a decision under the EPBC Act, this is confined to ‘persons aggrieved’ by the decision .
Section 487 of the EPBC Act extends the meaning of ‘persons aggrieved’ so that it includes any Australian individual or organisation engaged in environmental conservation, protection or research activities at any time in the two years prior to the decision-making.
The EPBC Bill seeks to repeal section 487, so as to remove this extended ability of a person or organisation to bring a legal challenge.
What will happen if the Bill becomes law?
If the EPBC Bill does pass into law, activists will not automatically lose the right to challenge decisions made under the EPBC Act. It just means only those that can satisfy the stricter requirements of an ‘aggrieved person’ under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) can launch a challenge.
The relevant requirements for this stricter test is set out in the landmark case, Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493. It will clearly include a person with a legal right that is impacted by the decision, such as an affected landowner. However, the test also includes a person or group which does not have a legal right at stake, but rather a ‘special interest’ in the subject matter of the decision; this interest must be greater than that held by the general public and must go beyond a mere emotional or intellectual concern.
An example of an entity which complied with the test is the case of Environment East Gippsland Inc v VicForests (2010) 30 VR 1. An environmental group concerned with protecting habitat, EEG brought an action against VicForests, a Victorian-owned forestry business undertaking approved logging.
The Supreme Court of Victoria found that EEG did have the requisite ‘special interest’ because it had been involved with the development of the particular forest’s management plan, it used the forest in question for recreational and educational purposes, and the government had previously recognised it for sustainability-type works.
If the Bill is passed, there is no doubt it will make it more difficult for activist groups to challenge EPBC Act decisions. However, an individual or organisation with the relevant ‘special interest’ in the subject matter of the decision will still be able to launch legal challenges. Given the resourcing and resourcefulness of contemporary activist groups, it is possible they will seek out and back such individuals or organisations to challenge major environmental project approvals under the EPBC Act.
Is the Bill likely to be passed into law?
Due to the Government holding a majority in the House of Representatives, the EPBC Bill will have no difficulty passing in the lower house. However, problems may arise in the Senate where it does not have an outright majority.
The Australian Labor Party (ALP) and Australian Greens (Greens) have indicated to the media that they will not support the Bill. As a result, the Government will need at least six out of the remaining eight Senate crossbenchers to vote in favour of the Bill.
Of these, Senators Glenn Lazarus, Zhenya (Dio) Wang and John Madigan have been reported as not supporting the Bill in its current form. Three others appear to be unsure at this stage.
There is no certainty until an official vote occurs in the Senate. But it looks like a bumpy road ahead for the Bill at this stage.
For further information, please contact:
John Ware, Partner, Herbert Smith Freehills
john.ware@hsf.com
