Commonwealth Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015

Tuesday 25 August 2015 @ 1.27 p.m. | Legal Research

As was previously mentioned by TimeBase, the Federal Attorney General has announced that the Federal Government intends to amend the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) section 487 to restrict conservationists, green groups and in fact most citizens from challenging major developmental projects under Federal law.

The Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 (the Bill) was introduced into the House of Representatives on 20 August 2015 for exactly this purpose. It has since been referred to the Senate Standing Committee on Environment and Communications.

Background to the Bill

The Bill amends the EPBC Act to repeal section 487 which extends the meaning of person aggrieved in the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act). According to the Explanatory Memorandum, the amendments will bring the EPBC Act into line with the standing provisions of the ADJR Act, and will not prevent persons who can meet the standing test in the ADJR Act from applying for judicial review.

The Bill will apply to applications made under the ADJR Act the day after the date of the Royal Assent irrespective of when the decision, failure to make a decision or conduct occurs.

Human Rights Implications

According to the Explanatory Memorandum, the Bill engages the right to a fair hearing in Article 14 of the International Covenant on Civil and Political Rights. However, the Bill does not limit this right. Section 487 of the EBPC Act currently extends standing to seek judicial review of decisions to individuals who are Australian citizens or residents, organisations or associations established in Australian or an external territory who have at any time in the two years immediately before the decision, failure to make a decision or conduct have engaged in a series of environmental conservation or research activities in Australia or an external territory. The Bill repeals this provision.

The definition of aggrieved persons in the ADJR Act will remain unchanged. The ADJR Act defines an aggrieved person as a person whose interests are adversely affected by the decision, failure to make a decision or conduct. People who satisfy the definition of an aggrieved person will continue to have standing to seek judicial review of decisions made under the EBPC Act.

The Bill does not alter the jurisdiction of courts to review decisions under the ADJR Act. Repeal of section 487 will mean that standing will therefore be available to all parties that currently have access to legal rights of standing under the general ADJR Act standing provisions.

Reaction to the Change

According to Greg Hunt MP in his introductory speech to the Bill:

“This provision of the EPBC Act was well intentioned; however it has now become the basis for the Americanisation of the Australian justice system. It allows virtually any person or group to bring a lawsuit, regardless of whether they are adversely affected or even near a project. This is out of step with Commonwealth law and has provided a legal loophole for activists to exploit. Lawsuits that are designed purely to delay a project, increase costs and increase uncertainty for investors, and create a platform for campaigning, undermine the intention of the EPBC Act to provide a process with both high standards and certainty for assessing proposals.”

However, it should be noted that, as voiced in The Conversation:

“Section 487 was initially implemented to overcome the problem of environmental and conservation groups being unable to bring actions on behalf of affected communities if they are not part of that community themselves. To activate section 487, the environmental group must have engaged in environmental research or activities in the previous two years, and have environmental research or protection included in its objects of association…Removing section 487 and abolishing this extended standing will effectively preclude environmental groups from acting on behalf of affected communities and from performing their important function as a watchdog.”

The Senate referred the Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 for inquiry and report on 20 August 2015. The closing date for submissions is 11 September 2015, with the final report due on 12 October 2015.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

Sources:

Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 and Secondary materials as reproduced on TimeBase LawOne

Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 Senate Submissions

The Conversation Article

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