Environmental Protection Biodiversity Conservation Act 1999

The Canberra Times - Professor Don Anton, Centre for Climate Law and Policy, ANU College of Law
George Brandis' recently announced plans to repeal a key provision in the Environmental Protection Biodiversity Conservation Act 1999 – a provision that allows the public to challenge the legality of decisions made by government – cannot stand scrutiny. It runs against the rule of law, democratic accountability, and history. It should be seen for what it is – another attempt to stop environmental concerns from getting in the way of economic priorities. It is a reactionary response to the successful challenge, by the Mackay Conservation Group, of the decision to approve the Carmichael coal mine. It builds on the government's draconian funding cuts already made to public interest environmental litigation.
The EPBCA is the Commonwealth's flagship environmental legislation. It was enacted (by the Howard Coalition government) to improve on Australia's first-generation environmental laws dating back to the early 1970s. It was touted by the Coalition government for its efficiency and streamlined approached. It was the product of some very hard political bargaining between the government and the now defunct political party of the Democrats, which at that time held the balance of power in the Senate.
The Democrats supported the establishment of the GST in exchange for significant amendments to the exposure draft of the EPBC Bill before its enactment. Those amendments are reflected most prominently in a host of section numbers peppered through the act that are followed by capital letters (eg, sections 146A–146L on strategic impact assessment).
One innovation in the EPBCA is reflected in section 487 of the act. Note that there is no capital letter following the section number because it was enacted in terms drafted by the government. Until section 487 was passed, environmental decisions of the Commonwealth were generally non-justiciable under ancient common law rules to which the Attorney-General seeks to return.
An individual or group concerned with ensuring compliance with environmental law had to establish special interest over and above the general public (ordinarily a direct injury to an economic interest) caused by the alleged breach before a court would entertain a lawsuit. Without a special interest, a person or group did not have "standing" – a sufficient connection with the alleged breach of law – to complain before a court. This was a very high hurdle and, not surprisingly, few individuals or green groups could meet the test.
Section 487 relaxed this standing requirement in connection with judicial review of decisions made under the EPBCA. Individuals and groups are deemed to have a special interest (are "persons aggrieved") if at any time within the two years prior to the decision challenged, they have engaged in activities associated with environmental protection. In the case of a group, its explicit purposes must include some form of environmental concern. It is true that the Democrats wanted more than this limited expansion of standing, but it was accepted for other trade-offs.
The Democrats were pushing of the sort of "open standing" provisions pioneered by NSW and other Australian states in the late 1970s and early 1980s. For a long time now, the default position in many environmental laws found in the states is to allow "any person" to seek judicial review of decisions. Many also allow "any person" to sue to restrain or remedy a breach of environmental law. No track record necessary. It is not hard to understand why. The environment is a public good, deserving of public protection in cases of government failure. State parliaments saw this, so did the international community.
By 1992 we had Principle 10 of the Rio Declaration in which every country in the world proclaimed with unequivocal certainty that "environmental issues are best handled with participation of all concerned citizens … In order for participation to be effective, Principle 10 makes clear that access to judicial … proceedings, including redress and remedy, shall be provided."
This approach rests on the sound view that environmental protection cannot be left to governments alone. Rather, it requires and benefits from civic participation, including by way of standing to challenge environmental decisions. This is now a firmly entrenched principle in international environmental law and policy today, reflected in a host of laws around the world.
It is not difficult to see why generous standing provisions are the norm in an environmental context. They bring more brains to decision-making and promote the rule of law. In an open democracy, it is essential that the citizenry be able to test the validity of governmental decisions about the environment in order to check what would otherwise be naked power.
In the mid-13th century, Bracton famously proclaimed the superiority of the law over the king as a norm necessary to eliminate arbitrary rule. So by giving the public a right to seek redress when the government fails execute environmental laws as required, the rule of environmental law is strengthened.
Moreover, by providing generous standing provisions and third party appeal rights, the legitimacy of the governmental decision-making process is enhanced. People have a strong sense that losing is not quite so bad if they have had a fair chance at playing the game. Sir Robert Megarry once observed that the most important person in a courtroom was the litigant who was about to lose, and it was the primary duty of the court to convince that person that his or her point of view had been heard and understood, even if the court found it necessary to reject it.
Why, then, does Attorney-General Brandis want to repeal a law enacted by his political forebears and recognised as salutary by state governments and countries around the world? This question becomes more perplexing when one considers recent data from the Australian Institute. Since the EPBCA began in July 2000, it has been used a total of 33 times to challenge 27 projects out of a total of the 5500 referred to the minister for a decision.
In only two cases of those 33 did a green group challenger succeed in obtaining the relief it sought. That's a success rate of 0.04 per cent, rounded up. Add to that a miserly denial rate of 1.3 per cent of applications made for approval under the EPBCA – yes, developers currently have a better than 98 per cent chance of approval – and one is left with a sense that we have environmental law, but we do not have environmental protection.
Nevertheless, according to Senator Brandis, a repeal is urgently needed. Some worn-out arguments have been used to try and turn back time. The biggest criticism levelled against section 487 standing has been clothed with pejorative language. Suddenly, it supposedly permits "vigilante" litigation and "lawfare". Putting the rule of law to one side, existing rules have long prohibited vexatious and frivolous litigation. You can be sure that if the Mackay Environmental Group had been a vexatious, "vigilante" litigant engaged in "lawfare", then government and highly paid mining lawyers would have disposed of the challenge to the decision on the Carmichael coal mine post haste with little trouble.
Another complaint by Senator Brandis is that "statutory language is extremely loose" so that "virtually anyone" has legal standing to challenge developments. That is the point, of course. That is what is desired and intended. The complaint is really an appeal to the old "flood-gates" argument; that every man and his dog will rush to the courthouse and sue with open standing.
The reality behind the statistics above makes this complaint absurd. It's been recognised as false since at least 1989 when a judge with direct experience, former Chief Judge Harold Cripps of the NSW Land and Environment Court, wrote: 'It was said … in 1980 that the presence of [open standing] would lead to a rash of harassing and vexatious litigation. That has not happened and, with the greatest respect to people who think otherwise, I think that that argument has been wholly discredited'.
The long-recognised, simple fact is that the environment is just too important to be left to the government alone. Public participation and open standing provide critical input from those who actually live in the environment subject to controversy. The public provides both an essential source of information about the environment and, with open standing, in ensuring that the government's feet are held to the fire in the proper implementation of the law. The people of Australia should accept nothing less.