Explained: How gutting EPBC protections will let governments break their own laws

The Senate Standing Committee investigating the government’s EPBC Amendment (Standing) Bill 2015 has released its report.

The Senate Standing Committee investigating the government’s Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 (proposed repeal of section 487 of the EPBC Act) has released its report on the proposed bill today.

This bill, if it passes the Senate, will repeal the current standing provision (section 487) of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act). This section currently allows both individuals and groups to challenge decisions made under the EPBC Act. An organisation can establish standing by showing that they have engaged in activities for ‘protection or conservation of, or research into, the environment’ within the previous two years, and that the objects or purposes of the organisation are environmental protection.

The effect of repealing this provision would be to remove standing for environmental or community organisations or individuals seeking judicial review of decisions made under the EPBC Act.

Instead, in order to challenge a decision made under the EPBC Act, organisations would have to establish standing under the common law test which applies to the Administrative Decisions (Judicial Review) Act 1977  (the ADJR Act) which is restricted to a ‘person aggrieved’ meaning a person whose interests have been adversely affected by the decision.

The environment, including our Great Barrier Reef, our climate, and our endangered Australian species are important to the lives of most Australians, not just those in the immediate vicinity of a given project. This is why section 487 was put in the EPBC Act in the first place, as acknowledged by Department of Environment the report. This reasoning remains as valid as ever. To remove section 487 so that those seeking to protect the environment in the public interest will have to establish standing under the common law test is clearly retrogressive

We’ve done an initial review, and here are our top 5 points about the report :

The three government members of the committee recommended the passing of the bill, and the ALP and Greens members dissented, each with separate reports opposing the bill.

1.       The Committee has failed to analyse the evidence, and they make only two very weak findings in support of the bill.  

The ‘Committee view’ of the government members in Chapter 4 of the report fails to provide any analysis of the evidence provided to the committee both in support of the bill and opposing the bill.   The committee makes only two findings –

a.        that repeal of s 487 will not diminish the protection of Australia’s environment provided by the EPBC Act  based on a submission from the Department of Environment that the assessment and approval process will remain the same.   This is a completely fallacious argument because it ignores the benefit to protecting Australia’s environment of third party review to challenge those approvals when there is a question about whether the Minister has properly followed the law.   [para 4.2 of the Committee’s report]

b.      that review of decisions under the EPBC Act will remain available through the ADJR and Judiciary Act.   While citing the evidence in their report, in their final view the Committee ignores the evidence provided by lawyers and ENGOs that the bill is unlikely to achieve its purpose and repeal of section 487 will simply require parties to spend extra time in court to resolve the issue of standing.   [para 4.3 and  paras 3.12 to 3.15 of the Committee’s report]

2.       The Committee acknowledges that the Scrutiny of Bills Committees’ observation that the bill seeks to restrict the courts from undertaking their constitutional role – to ensure that decision makers comply with the law.   

While government members recommended that the bill be passed, they acknowledged that the Scrutiny of Bills Committee commented that it is a matter of concern that the more restrictive standing rules may result in the inability of courts, in at least some cases, to undertake their constitutional role (ie. To ensure that Commonwealth decision-makers comply with the law [Para 1.28]), and that no evidence that section 487 has led to inappropriate litigation has been provided in the explanatory memorandum of the Bill, nor in the Minister’s response to the Scrutiny of Bills Committee Report.  [para 1.30 and 1.32 of the Committee’s report].

3.       The Committee report fails to grapple with the very serious objections to the bill that relate to accountability and rule of law.

Decisions can only be challenged if there’s a reasonable argument the government did not comply with its own laws.  The Federal Government wants to make it harder for people to bring challenges that test the lawfulness of its decisions. This is a bad outcome for transparency and accountability and rule of law, in relation to projects that are having a negative impact on the most significant aspects of Australia’s environments.

4.       Industry lobbyists (and the Commonwealth Department of Environment) are the only submitters in support of the bill.

The evidence in support of the repeal cited by the government members came only from Industry lobbyists who have a financial interest in preventing public participation –  the Minerals Council of Australia, the Business Council of Australia, Ports Australia and the South Australian Chamber of Mines and Energy. Every other submitter opposed the bill, including farmers, lawyers, academics, ENGOs.  Unresolved concerns about the bill were raised by the Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights .

5.       The bill is politically motivated, and the absence of public hearings means the any evidence for repeal of s487 was never properly scrutinised or tested.

The dissenting report of the two Labor Senator’s on the committee calls the bill ‘a very unsophisticated, and short-sighted response to an administrative error made by the Government in the approval process for the Adani Carmichael coal mine in Queensland.’  [para 1.2 of Labor Senator’s dissenting report].  They also comment on the conduct of the committee’s inquiry into the bill, in particular the absence of public hearings which occurred because the Government members of the committee used their numbers to bring the presentation of the report forward to todays date.   The Labor Senator’s consider the absence of hearings limits the ability of committee members to test the Government’s justification for the bill, and the evidence received in public submissions, thereby the committee has abrogated its responsibility to thoroughly scrutinise the bill.  [para 1.35 of Labor Senator’s dissenting report]

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