20 October, 2015
Restricting the ability of environmental groups to challenge EPBC Act decisions
Following the Federal Court's recent decision to set aside the Federal Environment Minister's decision to approve the Adani Carmichael coal mine in Queensland, the Federal Government introduced a Bill to amend the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to make it more difficult for environmental organisations to challenge environmental decisions.
The Government's proposal is to repeal section 487 of the EPBC Act.
This section effectively entitles people and organisations who have engaged in environmental or conservation activities for at least two years to challenge environmental decisions regardless of whether they are directly affected by the decision. Section 487 essentially widens the general standing rule in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) that a person may challenge a Federal Government decision only if he or she is directly affected by it.
If passed, applicants seeking judicial review of a decision by the Federal Environment Minister under the EPBC Act would have to persuade the Federal Court of their standing under the ADJR Act.
Politically, the Government's Bill is unlikely to succeed. Its proposed amendment will probably be blocked by the Senate, where it will likely face opposition from the Australian Labor Party, the Australian Greens and other Independent Senators. Moreover, there have been reports that Prime Minister Turnbull plans to withdraw the Bill or significantly curtail its effect.
On 20 August 2015, the proposed amendment was referred to the Senate Environment and Communications Legislation Committee for consideration. The Committee's report is due on 12 October 2015.
To find out more information about the proposed amendment and monitor its progress through Parliament, visit the Parliament of Australia website here.
For further information, please contact:
John Briggs, Partner, Ashurst
john.briggs@ashurst.com
