Christine Milne (Tasmania, Australian Greens) Share this | Hansard source

I move Greens amendment (20) on sheet 7202:

(20) Page 59 (after line 28), after Part 4, insert:

Part 4A—Review of administrative decisions

82A Extended standing for judicial review

  (1) This section extends (and does not limit) the meaning of the term person aggrieved in the Administrative Decisions (Judicial Review) Act 1977 for the purposes of the application of that Act in relation to:

     (a) a decision made under this Act or the regulations; or

     (b) a failure to make a decision under this Act or the regulations; or

     (c) conduct engaged in for the purpose of making a decision under this Act or the regulations.

  (2) An individual is taken to be a person aggrieved by the decision, failure or conduct if:

     (a) the individual is an Australian citizen or ordinarily resident in Australia or an external Territory; and

     (b) at any time in the 2 years immediately before the decision, failure or conduct, the individual has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment, or relating to logging, illegally logged timber, or a related matter.

  (3) An organisation or association (whether incorporated or not) is taken to be a person aggrieved by the decision, failure or conduct if:

     (a) the organisation or association is incorporated, or was otherwise established, in Australia or an external Territory; and

     (b) at any time in the 2 years immediately before the decision, failure or conduct, the organisation or association has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment, or relating to logging, illegally logged timber, or a related matter.

  (4) A term (except person aggrieved) used in this section and in the Administrative Decisions (Judicial Review) Act 1977 has the same meaning in this section as it has in that Act.

82B Applications on behalf of unincorporated organisations

  (1) A person acting on behalf of an unincorporated organisation that is a person aggrieved (for the purposes of the Administrative Decisions (Judicial Review) Act 1977) by:

     (a) a decision made under this Act or the regulations; or

     (b) a failure to make a decision under this Act or the regulations; or

     (c) conduct engaged in for the purpose of making a decision under this Act or the regulations;

may apply under that Act for a review of the decision, failure or conduct.

  (2) The Administrative Decisions (Judicial Review) Act 1977 applies in relation to the person as if he or she were a person aggrieved.

This amendment goes to the issue of standing. In line with best practice environmental legislation, broad standing should be made available to the public, including NGOs and timber industry competitors, to initiate action for civil breaches of the act.

There are compelling reasons for allowing public interest litigation under the bill. In 1995 the Australian Law Reform Commission considered standing law and concluded that:

Public interest litigation is an important mechanism for clarifying legal issues—

or enforcing laws—

to the benefit of the general community.

I would argue that this legislation is public interest legislation, and allowing public interest participation in the legislation, through standing, is not only appropriate but should be seen as a valuable measure to improve the act and achieve its objectives.

Some within the timber industry have raised concerns with open standing provisions in relation to this bill. A common argument against open standing is that it will open litigation floodgates. This argument was made in relation to the New South Wales Environment Planning and Assessment Act 1979. In 1990, former chief of the New South Wales Land and Environment Court Justice Jerrold Cripps noted that no such flood of litigation occurred and that the argument had been ‘wholly discredited’. In relation to the same act, Justice Murray Wilcox noted in 1987 that, because of cost provisions, litigation, even with open standing provisions, was not entered into ‘lightly or wantonly’, and that the actual litigation figures in New South Wales supported this.

Similar concerns regarding litigation floods were raised when the EPBC Act was passed. Section 487 allows any interested person to challenge decisions made under the act. In their first review of the act, the Senate Standing Committee on Environment, Communication and the Arts found that the level of litigation appeared to be ‘extremely low’. The signatories to the Common Platform also identified broad standing as a critical element to successful legislation.

This is why the Greens want standing provisions derived from those currently existing in the EPBC Act to be included in this legislation. It is nothing new. It is already there in the EPBC Act. If the minister is being open and honest with the Senate in saying that they want to make sure that the importation of illegal timber does not occur, why would he not allow standing for NGOs that want to take the matter to court, if indeed they do? In actual terms it is going to cost them money to do so, so they are not going to do it in a wanton or frivolous manner, and in fact they have not done so. The EPBC Act has been law in Australia since 1996 and the level of litigation has been extremely low, so the same would apply.

So, I ask the Senate to support the idea that we give standing under the act, consistent with the EPBC Act and with best practice environmental legislation, to allow broad standing to the public, including NGOs and timber industry competitors, because there is nothing more frustrating than someone who is behaving ethically in the system to know that somebody else is not and is making claims that they cannot substantiate. The people who know that the truth is being stretched are more likely to be in the industry, in the business, and more likely to be better informed.

So, in the interests of competition in the business world and in the interests of the public good, why would you not allow broader standing consistent with the EPBC Act? That is what this amendment seeks to do.