Wednesday, 9 September 2015
Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015; Second Reading
It was entertaining to listen to the member for Tangney talk about deficit and debt when under this government deficit and debt have been on the rise. It was also entertaining to hear him shed some crocodile tears about Australian jobs and workers when day after day this government has been championing the China-Australia Free Trade Agreement which would put an end to labour market testing for nurses, engineers, motor mechanics, electricians—some 200 occupations in all—with very great detriment to Australian workers and Australian jobs.
There is a context to this bill and, frankly, we do not talk about it anywhere near enough in this House—that is, the state of our environment. The environment has never been more fragile, never been under more pressure and never been more in need of governments and political leaders who will care for it and protect it. It has never been more in need of inspired amateurs and environmental groups who will hold businesses and governments to account where they fail.
We have a precarious environment, one in which many birds, animals and plants are threatened with extinction. We have very serious problems in relation to salinity. We have the declining health of many of our waterways including the Murray-Darling Basin. We have the Great Barrier Reef having been the subject of United Nations concern for some years now.
I have spoken in the House about the threats faced by seabirds and shorebirds—and other species, such as the Mallee emu-wren and the Gouldian finch, victims of inappropriate fire regimes—and the way in which species like the regent honeyeater and the swift parrot are now down to a few hundred individuals and are at risk of becoming extinct in the wild. We have an environment which is in need of protection, in need of tender loving care and in need of the support of volunteer groups and environmental organisations.
The history of environmental law and in particular the question of 'standing'—that is, the capacity to launch a legal action—has been set out in correspondence from Murray Wilcox AO QC, who has had a distinguished career in this field. He points out that, in his early days:
… there was often a real question about whether the applicant had standing to sue; that is, whether he or she was an appropriate person to bring the case. The question always turned on whether the applicant had a personal financial or property interest in the administrative decision, the legal validity of which the court was asked to review. This test was inherited by Australian courts from 19th century English cases.
As time went on, Australian judges came to think this test too narrow. They recognised that people sometimes felt deeply about an administrative decision, including a decision regarding land use or development, even though it did not adversely affect their pockets; but the person thought the decision contrary to the public interest. Over a series of cases, judges gradually decided it was reasonable to allow such people to test the legal validity of the decision that gave rise to their concern. Consequently, they accorded standing to applicants able to demonstrate a genuine interest, not necessarily financial, in the issue or place under consideration. The significant cases commence with the High Court decision in Onus v Alcoa …
The problem about this approach was that its application was uncertain. How much concern was necessary? Judges found themselves examining the minutiae of the applicant's involvement in the problem, instead of getting on with the legal issue about the validity of the administrative decision. It was in order to end the expensive side-issue about standing, that section 487 was inserted into the EPBC Act. A clear test was laid down in that section. Henceforth the court would rarely need to spend any time on standing; it could get on with the case itself.
Section 487 has worked well. As anticipated, the section has eliminated arguments about standing, with consequential savings in cost and time. … [It] has not opened any floodgates; only about one-half of one per cent of decisions under the EPBC Act have been subjected to an application for judicial review.
He also observes—and I agree with him 100 per cent—that species extinctions are important; and, if they are not, 'the biodiversity provisions should be removed from the EPBC Act'. He also expresses the view that the bill before the House is 'futile'. He states:
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.
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.
This bill aims to repeal section 487 of the EPBC Act and to remove extended standing for community members to seek judicial review of decisions made under the EPBC Act. The removal of these standing provisions would severely limit the access that communities have to ensure that the Australian government effectively and legally administers our national environmental law.
Such a move would likely limit a range of community groups and organisations from accessing justice under national environmental law—including: farming and landholder groups, except for those farmers who are directly adjacent to, or deemed affected by, a development; experts, including water scientists who could identify significant failings in the work or decision making of the government; environmental groups who have legitimate concerns relating to how our laws are working to ensure clear air, clean water and healthy ecosystems; Indigenous communities who have strong cultural heritage connections to country; and local Landcare and wildlife rehabilitation groups who work to protect local and regional environments.
The bill would limit standing to a person 'whose interests are adversely affected by the decision, based on federal administrative law'. The extent of standing for a particular individual or group would need to be considered on a case-by-case basis with reference to common law cases. So it is far from clear that the bill would reduce delay in projects as a result of legal proceedings; rather, it would require additional time and resources for the courts and legal parties to initially resolve the issue of standing before proceeding to substantive environmental issues.
There is a strong rationale for retaining broad standing provisions for judicial review. Having sufficiently open standing and access to justice has numerous benefits—including, providing an important check against corrupt behaviour by both government officials and industry. It enables the community to ensure that government is implementing the rule of law effectively, and it helps to stop bad decisions that threaten the health and wellbeing of communities and damage our environment.
Given all of that, you really would wonder why the government is bringing this bill before the House. The government has brought the bill on following a decision by the Federal Court to set aside the environment minister's approval for Adani's Carmichael coalmine. In that case, the outcome was reached because the government admitted that the approval of Adani's coalmine and rail project under the EPBC Act was legally flawed. The government, through its solicitors, requested that the Federal Court set aside the environment minister's approval of the project, explicitly acknowledging that a practical consequence of the making of this order would be that the minister will be required to reconsider the assessment that was the subject of the decision under review.
After that, it is absolutely outlandish for this government to make claims about 'vigilante litigation'. The legitimate Federal Court action, brought by the Mackay Conservation Group, identified a major error in the approval given by the minister. It was identified that the minister did not account for important conservation advice for two nationally threatened species: the yakka skink and the ornamental snake.
It is important to note that the government's mistake in this process was only highlighted by legitimate legal action taken by an environmental organisation. The government admitted that mistake. It requested that its own decision be set aside. So the claim of 'vigilante litigation' is just ludicrous. That is what the courts are there for: to ensure that the rule of law is followed. It is imperative that projects with large-scale impacts, such as this one, be subject to a thorough and transparent environmental assessment that considers the rights and views of the community, and that the rule of law is followed when issuing an approval.
As others have pointed out to the House, in this legislation's 15-year history some 27 of 5,500 referrals made under the act—that is, approximately half of one per cent—have been brought before the courts for judicial review. Under current arrangements, the Federal Court will only hear cases that have sufficient merit for the grounds being argued. It will not proceed with any litigation that it views to be vexatious or without merit. Under the existing provisions, under national environmental law, the significant cost of legal action and the threat of adverse cost orders remain considerable barriers to litigation.
The move to repeal section 487 and to cast responsible environmental groups as vigilantes or saboteurs is misdirected and slanderous. Responsible environmental organisations use the rule of law to ensure that the government of the day is diligent and effective in its implementation of legislation. If the government fails this test, it has no business seeking now to restrict the rights of Australians to ensure that our environment is appropriately protected.
The government claims that this bill will not affect farmers. That is not true; it will. This bill will restrict the nature of any action brought by any group or individual. It will limit the taking of action in court to a person whose interests are adversely affected by the decision. This limitation will mean that establishing standing will require that farmers and other concerned citizens establish some form of interest in the project occurring through common law processes. Such a move will create a significant financial impost on farmers, especially those already struggling against the might of some of these projects.
Retired Family Court judge Ian Coleman has noted in The Land newspaper that this change would have an 'appalling impact' and would 'just be so unfair to farmers'. He went on to state:
Farmers would incur individually the cost of both lawyers and experts to add some substance to their challenges and once you get experts involved, you cruise past $50,000 very quickly.
… … …
Unless you can prove your financial interests are directly affected then you would likely have no right to object to the decision.
Little wonder then that Alan Jones is opposing this legislation; and more strength to his arm in relation to this.
When we look at what the experts and independent bodies are saying on the notion of standing, we have the Hawke review saying that these provisions ought to be retained. We have the New South Wales ICAC noting the importance of third-party rights to review decisions as an important mechanism to stop corruption, noting:
Merit appeals provide a safeguard against biased decision-making by consent authorities and enhance the accountability of these authorities. The extension of third party merit appeals acts as a disincentive for corrupt decision-making by consent authorities.
The Productivity Commission, in a recent review of major projects approval processes, echoed this view, and the Human Rights Law Centre has also supported this. The case for retaining this legislation is very clear.
There has been discussion about the role of the Mackay Conservation Group. I point out to the House that over the years they have been involved in numerous actions to protect the environment, working with community groups and individuals to get a 20-year moratorium by the Queensland government in 2007 on oil shale mining in areas of the nationally listed Goorganga Wetlands; they have been able to get fine dust continuous monitoring done downwind of the Hay Point coal terminal for coaldust blowing on the community of McEwens Beach; and they have lobbied in relation to numerous environmental questions in the interests of residents and the environment in the Mackay region.
I urge the House to reject this bill. It is a disgrace. It reveals only too clearly the contempt and hostility this government has for the environment and for Australia's unique, beautiful and fragile continent.