Senate Environment and Communications Legislation Committee Inquiry into the Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 Submission by the Department of the Environment 1. INTRODUCTION The Government introduced the Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015 into the House of Representatives on 20 August 2015. The Bill would repeal section 487 of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act). Section 487 of the EPBC Act extends the range of persons and organisations who may apply for judicial review of EPBC Act approval decisions beyond those who may do so under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) and the Judiciary Act 1903. The purpose of the Bill is to bring the arrangements for standing to make a judicial review application under the EPBC Act into line with the standard arrangements for permitting judicial review challenges to Commonwealth administrative decisions as provided for under the ADJR Act and the Judiciary Act.1 2. LEGISLATIVE CONTEXT History of the extended standing provisions under the EPBC Act The extended standing provisions contained in section 487 have been part of the EPBC Act since it was passed in 1999. Section 487 has not been amended since that time. The facilitation of judicial review by the extended standing provisions in the EBPC Act was a fundamental change from the Environment Protection (Impact of Proposals) Act 1974 (the EPIP Act). In introducing the EPIP Act in 1974, the then Minister for the Environment and Conservation, the Hon Dr Moss Cass, said in his second reading speech that the government had decided not to have wide standing provisions. Dr Cass noted difficulties in the United States arising from its environmental impact assessment due to “too frequent a resort to the courts”.2 Section 487 was intended to recognise the general public interest in the protection of matters of national environmental significance under the EPBC Act. This is on the basis that the public interest is separate from a personal interest, such as a property right or business interest, affected by a decision made under the EPBC Act. The Explanatory Memorandum to the 1 See the Minister’s Second Reading Speech on the Bill. Parliamentary Debates, House of Representatives, 20 August 2015, 4 (Mr Hunt). 2 Commonwealth, Parliamentary Debates, House of Representatives, 26 November 1974, 4082 (Dr Cass). Environment Protection and Biodiversity Conservation Bill 1998 noted that section 487 extends (and does not limit) the meaning of the term ‘person aggrieved’ in the ADJR Act.3 3. JUDICIAL REVIEW UNDER THE EBPC ACT Standard judicial review arrangements for EPBC Act decisions The EPBC Act provides that the Minister or his or her delegate may make a wide range of administrative decisions concerning matters regulated by the Act. Judicial review, which concerns the legality of the way in which a decision is made by the statutory decision-maker, is available for certain administrative decisions made under the EPBC Act. Ordinarily, applications for judicial review would be made under: section 5 of the ADJR Act (which concerns applications made to the Federal Court); or more rarely, under section 39B of the Judiciary Act 1903 (which concerns the applications made to the Federal Court as part of its original jurisdiction, for instance, an application to seek an injunction or a declaration against an officer of the Commonwealth). Standing to seek judicial review under the standard arrangements Standing to make an application under section 5 of the ADJR Act is determined by whether someone is a ‘person aggrieved’ by a decision of an administrative character made under an enactment. An aggrieved person includes a person whose interests are adversely affected by the decision. Generally, a person or organisation would need to show a ‘special interest’ that is adversely affected by the relevant decision. Standing to make an application under section 39B of the Judiciary Act is determined by the common law, which provides that the applicant must either have a private right or be able to establish that he or she has a ‘special interest in the subject matter’. ‘Special interest’ would generally require that the applicant show an interest in the subject matter of the action which is beyond that of any other member of the public.4 Merits review of EPBC Act decisions Merits review is only available for limited decisions made under the EPBC Act. It allows the Administrative Appeals Tribunal to consider all aspects of an administrative decision and to affirm, vary or set aside the original decision. In the EPBC Act, merits review is available for permit, certificate and declaration decisions under Part 13 and 13A of the EPBC Act (sections 206A(1), 221A, 243A, 263A, 303JG(1), 473(1)). In some cases, the decisions that are reviewable through merits review may be limited to decisions made by the delegate of the Minister. 3 Explanatory Memorandum, Environment Protection and Biodiversity Conservation Bill 1998 (paragraph 653) 4 The meaning of “special interest” under the common law test for determining standing was determined by the High Court in Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493, in which environmental groups sought standing to challenge actions taken under the EPIP Act. 2 Judicial review and section 487 of the EPBC Act Section 487 extends the standing of parties to seek judicial review of decisions made under the EPBC Act beyond that contemplated by section 5 of the ADJR Act. Section 487 does this by extending the meaning of the term ‘person aggrieved’ in the ADJR Act beyond its normal application. Under section 487, a person, an organisation or an association (whether incorporated or not) is taken to be a person aggrieved for the purposes of making an application for judicial review under the ADJR Act if: In the case of a person – he or she is an Australian citizen or ordinarily resident in Australia or an external Territory. In the case of an organisation or association – the organisation or association is incorporated or was otherwise established, in Australia or an external Territory and has included in its objects or purpose, the protection or conservation of, or research into, the environment. At any time in the two years immediately before the relevant decision, failure or conduct to which the application relates, the person, 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. There must be a genuine and consistent pattern of such activities for there to be ‘a series’ of activities. Associated with this, section 488 provides that a person acting on behalf of an unincorporated organisation is also a ‘person aggrieved’, and therefore may also apply for review under the ADJR Act. Groups, which might include groups concerned with farming activities or land-use, that cannot show that they meet the tests around having a clearly environmental purpose or engaging in environmental activities, would not fall within the scope of section 487. 4. EXPERIENCE OF THIRD PARTY APPLICATIONS FOR JUDICIAL REVIEW BASED ON SECTION 487 The Department’s experience of judicial review under section 487 of the EBPC Act Third party applicants and their applications Since 2000, 22 different third party applicants have sought judicial review of decisions made by the Minister or his or her delegate under the EBPC Act in reliance on section 487. These third party applicants are usually either environmental and community groups (17 applicants) or individuals (5 applicants). Generally, the third party applicants have challenged decisions concerning: the assessment approach by which a project has been assessed; decisions that an action is a controlled action or not a controlled action; and decisions to approve an action with or without conditions. 3 Third party legal challenges have concerned a variety of projects, including the construction of roads, dams, mines and related infrastructure and residential and commercial developments. The number of third party legal challenges made under section 487 Since the commencement of the EPBC Act in 2000, there have been 375 third party legal challenges to approval decisions made under Part 7, 9 and 10 of the EPBC Act, which concerned 23 separate projects.6 A detailed breakdown of these legal challenges is set out in Attachment A. From the commencement of the EBPC Act in 2000 until 19 August 2015, the Minister or his or her delegate approved 817 projects under the EBPC Act. This is distinct from the number of projects referred to the Department, which did not require approval. Since 2000, the Department has been referred around 5,364 projects. EPBC Act approvals are the subject of an assessment process undertaken by the Department which generally results in the imposition of conditions designed to ensure that environmental concerns are addressed and managed. In many cases proponents also improve their proposals in response to issues and concerns raised by the Department and by third parties. Third party applicants have been successful in four legal challenges relating to three separate projects. In addition, eight of the 37 legal challenges were discontinued with either the consent of the parties or were withdrawn by the applicant. The basis of third party legal challenges to EPBC Act decisions Third party legal challenges have been made to EPBC Act approval decisions on a range of grounds, including that the decision maker: did not take into account relevant considerations; took into account irrelevant considerations; or provided insufficient time for particular elements of the decision process. In most cases, the question of what is relevant or not relevant, sufficient or insufficient, centres on an interpretation of the requirements of the EPBC Act and related laws.